HL Deb 19 January 1978 vol 388 cc232-41

Second Reading debate resumed.

4.33 p.m.

Lord MOYOLA

My Lords, I am no legal expert and I rise merely because I should like to endorse one point—a point that has already been made by the noble and learned Lord the Lord Chancellor and by the noble Lord, Lord Belstead. That is the point concerning the involvement in judicial matters of the Secretary of State, who is already involved in politics. I want to make it absolutely plain that I do not for one moment suspect that the Secretary of State would wish to manipulate the judges, but there is another side to this matter.

We in Northern Ireland have suffered over the years from a plague of lying propaganda. No opportunity has ever been missed to defame or denigrate the powers-that-be. I doubt whether there is any authority in the land which has not, at some time or other, been the subject of a campaign of vilification or been under attack in some way or other. The only body of any importance that I do not remember coming under attack, and very rightly so, is the Judiciary. I feel that the change this Bill will bring about, will by giving so much responsibility to the Secretary of State, provide just that opportunity for ill-intentioned people to attack the Secretary of State, the judges and the judicial system.

I do not, in anything that I say, intend to impugn the impartiality or integrity of the Secretary of State; but from time to time he is bound to be a party in cases which come before the courts. The most obvious example would concern claims dealing with criminal injuries—claims for compensation for bomb damage as a result of terrorist activities. It seems to me that if he is to have responsibility for deciding what judge is to try a case in which he is one of the parties concerned, then sooner or later someone or other on one side or other of the sectarian or political divide is going to say something to the effect of: "The Secretary of State gave my case to such and such a judge because he knew he had that judge in his pocket." From that could spread a tale of woe and a tale of calumny which would undermine public confidence in both the Secretary of State and the Judiciary. If past history is anything to go by, it will succeed, because there are plenty of simple-minded people about and, in Northern Ireland, there are even more people about who just want a stick with which to beat the Establishment, regardless of what that Establishment may be.

The noble and learned Lord the Lord Chancellor emphasised that he too, like the Secretary of State, has a ministerial responsibility; and of course it is perfectly true that similar attacks could be made on him. I feel that, despite that comment, the Lord Chancellor's Office is the proper place for this responsibility, because he is remote from Northern Ireland and is in no way involved in anything that goes on there. He is certainly regarded in the eyes of most people as part of the judicial process. Consequently, I have no doubt in saying that most people in Northern Ireland would realise that there is no propaganda "mileage" to be made from an attack on the Lord Chancellor's Department.

Like the noble Lord, Lord Belstead, I too would be very interested to know how many of the Northern Ireland judges have actually been consulted about the proposal to give the Secretary of State these new and added responsibilities. I should be very intrigued to know if, in fact, they were consulted, how many of them were in favour of the change. From what I have heard, I would say that the number, if any, was very few. To me, as to many people in Northern Ireland, this is an important matter. If the opportunity is given to undermine confidence in the Secretary of State and the Judiciary, I am absolutely certain that that opportunity will be taken; and I submit that, by making this change and placing this responsibility in the hands of the Secretary of State, we may well bring about an attack of the kind that I have mentioned on him and on the Judiciary. I very much hope that before the Bill completes all its stages some change along the lines I have suggested may be put into effect.

4.40 p.m.

Viscount BROOKEBOROUGH

My Lords, like other noble Lords, I rise to welcome this Bill. I should like to tell the House that the noble Lord, Lord Grey of Naunton, sent me a message to say: Started out to attend debate today. Am now firmly stuck in snowdrift at my own front door". I say that merely for the information of the House, because I know that the noble Lord intended to speak in the same tone as my noble friends Lord Moyola and Lord Belstead. The noble Lord, Lord Grey, has had years of experience in Northern Ireland, while the other two of us have spent all our lives in Northern Ireland, and we are three people who are asking the Government whether they will think again on this issue. It seems to me that, when a really strong opinion is held by people who have been so much involved, the Government should have another look at this issue.

I should also like to say how much I welcomed the speeches of the noble and learned Lord the Lord Chancellor and my noble friend Lord Belstead. The independence of the Judiciary in Northern Ireland is a subject which I have heard discussed all my life, and I consider it to be of the utmost importance to everybody in Northern Ireland. But we have to look at this Bill in the context of nine years of attempted revolution in that part of the United Kingdom. Like my two noble friends, I am certainly no lawyer and I shall not try to deal with the legal niceties. What I want to do is to paint the picture in which the courts will have to operate, and try to suggest that we should have a change.

The prime aim of subversives is to discredit the forces of law and order and the courts. That the terrorists have failed so far is to the eternal credit of the Lords Chief Justice who have ruled in Northern Ireland up till now, the noble and learned Lord, Lord MacDermott, and Sir Robert Lowry, together with their teams of judges in High Courts and county courts, and magistrates. If I may beg leave of the House, may I say how nice it is to see Sir Robert Lowry at the foot of the Steps. He is a man who has led our Judiciary and our courts through very difficult times indeed.

But if the subversives have failed in their attack, it is at this moment of time all the more incumbent upon us to protect our institutions and put them in a position where they will never again be open to attack. For I fear that, at a date not so very far in the future, we may have a renewed attack by terrorists, and I want all our institutions in Northern Ireland, and indeed in the rest of the United Kingdom, to be put in a position where it is difficult to discredit them. So, while making it clear that I welcome the Bill, I must make it equally clear that I consider the Bill as drafted to be a lost opportunity.

The issue is quite clear. Will the courts of Northern Ireland be less easy to discredit if they are administered by the Northern Ireland Office or by the Lord Chancellor's Office? On the one hand, we have a most politically active Government Department, the Northern Ireland Office, and on the other we have a Department which is steeped in centuries of the organisation of justice, and I do not think that we should underestimate either the involvement in politics of the Northern Ireland Office, or the standing of the Lord Chancellor's Office throughout the whole world. Knowing the insight, understanding and sympathy of the noble and learned Lord, I cannot believe that he would be unwilling to accept this further burden on our behalf. But I am slightly worried that he may have pulled a fast one on his colleague, the Secretary of State for Northern Ireland, because when I look at the size of the two men I feel that the battle may have been a little unequal. Without in any way casting aspersions on the right honourable gentleman the Secretary of State, we in Northern Ireland would prefer the burden of this office to be carried on the shoulders of the noble and learned Lord.

I have listened with great care to the long and detailed explanation of this Bill, and I fully understand and accept that the Judiciary's independence will be enhanced if this Bill is passed. But I was a little worried by the statement of the noble and learned Lord the Lord Chancellor, that he found that he had to be involved in matters concerning the administration of the courts in Great Britain, because that rather leaves open the fact that the Northern Ireland Office may have to interfere in matters of administration of the courts in Northern Ireland. I must point out that in the length of time which the noble and learned Lord took to explain this matter to us here lies the danger in Northern Ireland, because the ordinary people will probably have a lot of the explanation given to them by evil men at an appropriate time.

To my mind, the necessary involvement of the Northern Ireland Office in everyday politics prohibits their involvement in the administration of the courts, especially when we are reorganising these courts for years to come. I must also emphasise—and this point was made by my noble friend Lord Moyola—that in so very many cases the Northern Ireland Office is a litigant, and for it to be litigant and administrator at the same time makes it wrong for that Department to look after the administration of the courts. Further to that, we have the involvement of two great Departments. The Beeching Commission recommended that there should be only one authority in charge of the courts in Great Britain, and yet we are having a different development for Northern Ireland by having two Ministers responsible.

Paragraph 4 of the White Paper stated that it was regarded, as essential that executive responsibility for the provision, maintenance and due functioning of the courts system should be clearly distinguished from judicial responsibility for the administration of justice". That was in the White Paper which preceded this Bill, but I do not believe that to the ordinary man in the street that distinction is clear enough. I should like to follow my noble friend Lord Moyola by asking the noble and learned Lord what representations he has received from High Court judges, county court judges, magistrates and the Bar Council? What were their views, and what are their views, and, even if they are happy, would they be happier if the Lord Chancellor followed my suggestion and accepted this responsibility? It is the last part that is the most important.

I welcome the unified courts service. This is something which has been needed in Northern Ireland for a very long time. I should like to ask the noble and learned Lord how he sees the command structure—assuming that we cannot persuade the Government to change their minds—from the head of the Judicature Office to the Secretary of State? Will the head have direct access to the Permanent Under-Secretary, and from there to the Secretary of State? I feel that the standing of this official will be of great importance to the future administration of justice. In fact, will he be a three-star General, or just a two-star General?

I should like to finish by saying that I welcome this Bill, but I intend at the Committee stage to press the Government further to accept the substitution of the Lord Chancellor's Office for the Northern Ireland Office. We are not asking very much of the Government. I accept that we are asking something very big of the noble and learned Lord, but, as I said, he has very broad shoulders. But we are asking solidly from Northern Ireland—and I believe that I speak for most of the people who are involved in the administration of justice in Northern Ireland, and those who have thought about it—for only a small thing, but I believe that it would be a great thing on the part of the Government if they were to give way.

4.50 p.m.

The LORD CHANCELLOR

My Lords, I am most grateful for the welcome which noble Lords have given to the Bill, subject of course—I readily concede—to the anxieties that have been expressed about ministerial responsibility for the administration of the courts in Northern Ireland. That anxiety was expressed by the noble Lord, Lord Belstead, but, if he will permit me to say so, I think he has overlooked the recommendations of his own Administration in 1973. In the Northern Ireland constitutional proposals one sees recommended in paragraph 67(a) the very pattern which is contained in this Bill. Perhaps I may quote from paragraph 67(a): Responsibility for the appointment of county court judges, magistrates, coroners and a limited number of other appointments of a quasi judicial nature will be reserved to the Lord Chancellor and responsibility for the administration of the courts and tribunals in question will be reserved to the Secretary of State". At the end of that paragraph there appears this sentence: It is the view of the Government that all judicial appointments should be made by or on the recommendation of the Lord Chancellor"— that, of course, is provided for in this Bill— and that there should be a unified administration of the courts for which the Secretary of State should be answerable to Parliament". That was the view taken by the previous Conservative Administration and I have little doubt that the reasons why they came to that view were the same kind of reasons as those which I ventured to submit to your Lordships at the opening of this debate.

Perhaps I ought to emphasise certain matters. As noble Lords have said, it would indeed be very disturbing if this provision in the Bill were in any way to diminish confidence in the administration of justice in Northern Ireland. I do not believe that it will. The crucial matter is the maintenance of the independence of the Judiciary. As I indicated in my opening speech, I agree with the commendation and praise of the courage, the ability and the independence of the judges in Northern Ireland during the recent years of peril. I was particularly pleased—I know that he will not mind my saying this, and as I cannot see him at the moment I can properly do so, in any event—with the tribute paid to the Lord Chief Justice, Sir Robert Lowry. Never has a tribute been so well deserved.

Let us examine what the form will be under the Bill. All matters touching upon the independence of the Judiciary, notably the appointment and removal of judges and resident magistrates and, indeed, the deployment of judges, will remain in the hands of myself and the Lord Chief Justice. The Secretary of State will not be able to control which judge hears which case. The deployment of judges is a matter entirely for the Lord Chief Justice and myself. Although the Supreme Court will come under the supreme administration of the Secretary of State—at the moment no Minister is responsible for it—to a very large extent it will be run by the Lord Chief Justice. The officials who are running the Supreme Court now will be running it under the new arrangements. The Secretary of State is already responsible for courts below the High Court. Noble Lords have commended and noted the confidence which, at any rate until now, has existed in the courts of Northern Ireland. That confidence will continue. The provisions contained in the Bill will in no way impair those arrangements or that confidence.

There was a faint suggestion that my greater physical dimensions might have overborne the Secretary of State for Northern Ireland. I think that it was Lloyd George who said that you should measure a man from the neck up. I am not admitting any intellectual or other inferiority for myself by comparison with the Secretary of State for Northern Ireland, but those who know him well would indeed not venture to suggest that he is easily overborne. No; I am bound to tell your Lordships that the conclusion which the Secretary of State for Northern Ireland has reached and that I, independently and separately, have reached, knowing of my responsibility in these matters and knowing of the great and historic importance that is attached to my office of Lord Chancellor, has been taken with those considerations in mind.

I am satisfied that what is proposed in the Bill is best for the administration of justice in Northern Ireland. I am quite confident that when those who have expressed their anxieties—and those anxieties have very properly been expressed today—examine the present arrangements, the future arrangements and the careful steps which have been taken to preserve the independence of the Judiciary in every element of importance and their freedom and independence in the conduct of their own cases, they will see that the suggestion that the Secretary of State might perhaps bring pressure to bear on a judge to affect his decision in a given case, say in respect of a claim for civil injuries, is wholly unwarranted. The independence of the judge deciding the case will be as complete in the future as it is today. In view of the importance of this issue, I make no apology for repeating that assurance.

The noble Lord, Lord Belstead, raised a number of points of detail of which he was kind enough to give me notice. Perhaps I may refer briefly to some of those matters before I sit down. First, he mentioned why the recommendations of the MacDermott Committee in regard to probate matters are not provided for in the Bill. May I inform your Lordships that new provisions to give effect to the main recommendations of the MacDermott Committee relating to probate matters will be made. However, we think that those provisions are more appropriate for inclusion in a Northern Ireland Order in Council, to be made under the provisions of the Northern Ireland Act 1974, The noble Lord, Lord Belstead, may like to know that a comprehensive draft order relating to the administration of estates is in an advanced state of preparation, and the provisions relating to probate will be included. Those matters will, therefore, be covered. I do not know whether probate actions are so prevalent as they used to be in the Principality, where I used to practise at the Bar. If so, I am sure that the lawyers involved will be enjoying themselves in those proceedings, as I used to enjoy myself in them, too.

The next matter which was raised was in regard to the provisions relating to judicial review in Clauses 18 to 25. I do not think that the fact that statutory provision is made for the matters that are there provided for in this Bill will in any way bring into question the validity of Rules of Court which made similar provision in respect of England and Wales. In this Bill, advantage has been taken of the opportunity to give effect by primary legislation to the useful recommendations of the Law Commission in its report on Remedies in Administrative Law.

Then, with regard to the civil jurisdiction of magistrates, it is certainly intended to consider the abolition of some of the civil jurisdiction of the magistrates' courts. I am afraid that, because of lack of time, I was not able to develop the theme of the new office of circuit registrar but clearly he will be an important person in regard to the exercise of civil jurisdiction, particularly when, as we propose, it will fall to him and to his colleagues to deal with the small claims jurisdiction which it is proposed to introduce.

I was asked about the inclusion of Part VIII, Clauses 86–94 of the Bill, which contains a miscellany of rules of law in judicial matters generally Which have in fact been carried over from the Supreme Court of Judicature (Ireland) Act 1877, and there are corresponding provisions in the English Act of 1925. The reasons for including them are largely historical but nevertheless their inclusion is necessary and, at the Committee stage, if the noble Lord has any questions to raise with regard to them we shall be able to enter into the detail.

I am grateful for the preliminary canter, if I may put it in that way, that we have had on this Bill, but I should like to assure noble Lords that I have given most anxious thought to the question of Ministerial responsibility. I have had discussions not only with the Lord Chief Justice of Northern Ireland but also with the judges and, while I will not say that at this point of time they unanimously approve of what is proposed with regard to the functions of the Secretary of State—nor indeed for that matter do some members of the legal profession—I am quite confident that, when the point is analysed and examined, the conclusion will be reached that there are practical advantages in doing what the Bill proposes—namely, those who are in Belfast, who know the position, who know the individuals and know the people, are better able to conduct the sheer administration. Moreover, when it is borne in mind that careful safeguards have been introduced to protect that which is of crucial importance, I am confident that the Judiciary, the legal profession and the public of Northern Ireland will see that the Bill combines the necessary practicality and the best pattern for the administration that the situation can command. I wish a fair wind to the Bill in its future progress through the House and I hope that we shall be able to proceed fairly expeditiously so that the reforms contained in the Bill may be put into effect in the reasonably near future.

On Question, Bill read 2a, and committed to a Committee of the whole House.