HL Deb 15 January 2004 vol 657 cc725-40

House again in Committee.

Clause 4[Appointment of Lord Chief Justice and Lords Justices of Appeal]

Baroness Harris of Richmond moved Amendment No.30:

Page 2, line 41, leave out from beginning to end of line 3 on page 3 and insert— (3) The Prime Minister shall make recommendations to Her Majesty concerning all appointments under subsection (1) or (2), based on recommendations made by the First and Deputy First Minister acting jointly, in such forms as the Prime Minister may specify.

The noble Baroness said: With regard to the appointment of the Lord Chief Justice and Lords Justices of Appeal, we believe that the published Bill has failed to meet the expectation raised in the updated implementation plan published by the Northern Ireland Office that the Prime Minister will appoint persons to these positions, based on the recommendations of the First and Deputy First Minister". Instead the Bill has diminished the role of the First and Deputy First Ministers by requiring the Prime Minister only to "consider" any recommendation for appointment made by the First and Deputy First Ministers. That falls short of the Criminal Justice Review recommendation on this point which the Government purported to accept without qualification in the first plan. The review has provided that responsibility for making recommendations for the appointment of the Lord Chief Justice and Lords Justices of Appeal would lie with the Prime Minister, but on the basis of recommendations from the First and Deputy First Ministers.

The review recommendation appears to give greater weight to the recommendations of the First and Deputy First Ministers. Therefore, I ask the Minister why that wording was not incorporated in the Bill given that the same commitment had also been given in the updated implementation plan? Moreover, it seems only consistent with the transfer of judicial appointments from the expected to reserved category of the Northern Ireland Act that the First and Deputy First Ministers would, after devolution, have greater powers in relation to such appointments. I beg to move.

The Deputy Chairman of Committees (Lord Elton)

this amendment is carried, I shall be unable to call Amendment No.31 for reason of pre-emption.

Lord Glentoran

I have some inclination to support this amendment. However, I shall shortly move Amendments Nos.31, 32, 33 and 34 which cover basically the same subject, as I understand it, although perhaps our arguments will be different. The points that the noble Baroness made in relation to previous documents, including the review, are all very relevant. I am a little surprised that there is no noble Lord on the Labour Back Benches to take part in this debate. However, that is not my business or the Government's. I support the noble Baroness's amendment, but I would not support it were she to press it as I wish to move my Amendments Nos.31, 32, 33 and 34.

Lord Filkin

This amendment seeks to require the Prime Minister to base his recommendations to Her Majesty on the most senior judicial appointments on the recommendations of the First and Deputy First Ministers. That is how we interpret the amendment's wording and intent.

Under Clause 4 the Prime Minister will be required to consider the recommendations of the First and Deputy First Ministers before he makes a recommendation to Her Majesty. The First and Deputy First Ministers' recommendations will have been made after consultation with the Lord Chief Justice whose views will be made known to the Prime Minister. Our interpretation at least of the subsequent clutch of amendments of the noble Lord, Lord Glentoran, was that they pointed in the other direction from that, but we may have misinterpreted what the words, as to the substance or meant. Time will tell regarding that matter which we shall discuss later. If that were to be the case, I should suggest to the Committee that we are steering a middle course between the Prime Minister being no more than a postman—which I believe is the thrust of the Liberal Democrat recommendation—and how we interpret the recommendation of the noble Lord, Lord Glentoran; namely, that essentially the commission rather than the First and Deputy First Ministers makes the recommendation.

I hope that the Committee will agree that the process as debated at Second Reading strikes a right and necessary balance by ensuring a central role for the First and Deputy First Ministers and the Prime Minister in a robust and fair procedure. The Prime Minister will, of course, take very seriously the recommendations of the two Ministers acting jointly. We must rely on him to act appropriately. One could not conceive of a Prime Minister lightly dismissing the recommendations of the First Minister and the Deputy First Minister. However, one would not need to be too Machiavellian in nature not to conceive of some circumstances in which he might wish to test, or have some further exploration or probing of, that process. In the circumstances in which we find ourselves, I believe that the discretion that is available to him is exactly right. For those reasons—while one would hope that we are always in a situation where he would be no more than a postman—I do not think that it is wise to remove the possibility of him having some discretion and influence on the process.

Lord Mayhew of Twysden

This is an interesting topic. I should be interested to know from the noble Baroness who will reply to the debate on her amendment what the grounds are for distinguishing between the situation in Northern Ireland in this regard and that in England and Wales. In England and Wales the appointment of the very senior judiciary is made on the recommendation of the Prime Minister to Her Majesty. If I have understood correctly the import of the noble Baroness's amendment, and as has just been said, so far as concerns Northern Ireland the Prime Minister would simply be a postman, in which case why have him or her there at all? Although one recognises that Northern Ireland is in many respects different from the rest of the United Kingdom, I do not think that there is a sufficient reason to distinguish between the constitutional arrangements in this regard. However, I should be interested to hear from the noble Baroness why she believes that there is sufficient reason so to do.

Baroness Harris of Richmond

I take the point that has been made. I reiterate that the measure concerns the recommendations of the First and Deputy First Ministers, but the Bill has diminished their role. I shall consider very carefully what the Minister said. We may return to the matter on Report. In the mean time, I shall reflect on what the Minister said.

Lord Glentoran

Will the noble Baroness tell the House whether the Minister's interpretation is correct—if it is, mine was entirely wrong—that the Liberal Democrat amendment views the Prime Minister solely as a postman?

Baroness Harris of Richmond

No, indeed, we do not consider that that is the case. As I said, I shall reflect on what the Minister said. We may return to the matter at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Glentoran moved Amendment No.31:

Page 3, line 3, at end insert ", and (c) consult the Lord Chancellor"

The noble Lord said: The amendment is about the same subject: the appointment of the Lord Chief Justice. As the clause stands, as the Minister will appreciate having read the amendment, we are not happy. We have grouped the amendments because they all focus on Clause 4, which changes the arrangements for the appointment of the Lord Chief Justice and the Lords Justices of Appeal.

It would be profitable as we are in Committee to have just one debate on the shortcomings of the clause. The amendments are grouped so that we can debate our concerns under one heading. I shall speak to Amendments Nos.31 to 34 and focus on three main points. Essentially, we are not satisfied that the appointment of the most senior judicial officials in Northern Ireland, has the necessary degree of consultation between appropriate parties. In the Bill the chain of consultation is as follows:

Subsection (3) provides for the Prime Minister to ask the First and Deputy First Minister for a recommendation about the appointment "in such a form" as he may specify, which he must consider before he makes a recommendation to Her Majesty the Queen.

Subsection (4) provides for the First and Deputy First Ministers to be obliged to consult the Lord Chief Justice or the most senior Lord Justice of Appeal before making a recommendation to the Prime Minister.

Subsection (5) says that the Judicial Appointments Commission must advise the First and Deputy First Ministers on the procedure they should adopt in formulating a recommendation to the Prime Minister.

Our amendments seek to alter that change of consultation in three principal areas. First, consultation with the Lord Chancellor should be obligatory—that follows the thesis that we have pursued throughout—both for the Prime Minister; and under subsection (3); and the First and Deputy First Ministers in formulating their recommendations under subsection (4). Amendment No.31 would require the Prime Minister to consult the Lord Chancellor under subsection (3)—that is during his consideration of the recommendations put forward to him by the First and Deputy First Ministers. Amendment No.32 would require the First and Deputy First Ministers to consult the Lord Chancellor as well as the Lord Chief Justice under subsection (4) before they make their recommendations to the Prime Minister.

My noble friend Lord Kingsland put forward the fundamental reasons why we think the Lord Chancellor, as the head of the judiciary and having taken the judicial oath, should be responsible for, or at least be part of the consultation process in, judicial appointments. That is, surely, nowhere more necessary than when consulting before the appointment of the Lord Chief Justice and the Lord Justices of Appeal.

Our second major point is highlighted by Amendment No.33. Subsection (5) currently has the Judicial Appointments Commission give advice to the First and Deputy First Ministers on the procedure which should be adopted when making a recommendation under subsection (3). We are bemused as to why they should only give advice on procedure and not on potential candidates themselves. Surely the whole point of the JAC is to make judicial appointments. It should know better than the First and Deputy First Ministers and say from a less political and more impartial basis who should be put forward as worthy recommendations for such senior judicial positions. Amendment No.33 would have them give advice, not only on the procedure to adopt for recommendations hut, on the substance—perhaps on a short list of names of those who the Ministers consider to merit recommendation for the appointments.

Our third point follows that. We believe that there would be serious repercussions if the First and Deputy First Ministers put only one name forward to the Prime Minister under subsection 3(a). It would be hard for that not to be an overtly political decision, especially when currently the First and Deputy First Ministers are hardly likely to both support the same candidate. It might be a case, as happens in many other areas—in that little country, in my little country—of "your choice this time; my turn next time"—orange today and green tomorrow. The political implications of that are more alarming when one bears in mind that the Prime Minister might reject the one name put forward. I hope that lie would maintain that right. Therefore, we suggest that in Amendment No.34 at least three names be put forward in the recommendation by the First and Deputy First Ministers under subsection (3)(a) from which the Prime Minister must choose one.

That proposal would be in accordance with established practice, at least as it was under the noble and learned Lord, Lord Mackay of Clashfern. The respective merits of the judges recommended were explained and a ranking offered. The Prime Minister is not obliged to choose any of them under the amendment, nor should he be as a matter of statute, although normally he might do so. But he needs to be well informed of their perceived respective strengths and possible weaknesses, not merely to know who is the first choice of the First and Deputy First Ministers. I hope that I have made myself clear. I beg to move.

2.45 p.m.

Lord Filkin

I recognise the importance of the issues, the clause and the amendments. We have understood, as have our lawyers, that the thrust of the Liberal Democrat recommendation in the previous amendment left no discretion for the Prime Minister. I would be pleased to hear if that was not their intent, but that is the meaning of the words to us. As I have signalled, the Bill comes between two more extreme positions than that which we have adopted in this part of the Bill. It may be helpful if I put briefly on record the process as it would operate in practice. I am suggesting that, because I found it difficult and because in practice they work in reverse chronological order—going backwards rather than forwards in time when being read.

The first part of the process is essential—that before any vacancy arises the Judicial Appointments Commission would advise the First Minister and the Deputy First Minister on the procedure that they should adopt in formulating a recommendation to the Prime Minister on the appointment of the Lord Chief Justice or a Lord Justice of Appeal. So the procedure would have to be set out. The First Minister and the Deputy First Minister would have considered the advice of the commission and agreed, with the approval of the Prime Minister, the procedure that would be used. So, the commission would make recommendations to the First Minister and Deputy First Minister; they would consider a process; and that would then require the agreement of the Prime Minister, the First Minister and the Deputy First Minister before there was a vacancy.

The agreed procedure would be essential to ensure the overall integrity, fairness and transparency of the recommendations. One would expect that it would cover issues such as criteria; whether the process would involve applications or expressions of interest; the type of evidence on which criteria would be measured; the stage at which the Lord Chief Justice would be consulted; and the time that the overall procedure would take. Essentially, the process by which recommendations are to emerge, and the process for testing candidates—if that is not too formal a term—would have been set up.

Assuming that a vacancy arose, the Prime Minister would require the First Minister and the Deputy First Minister to make a recommendation to him in such form as the Prime Minister specified. That would allow the Prime Minister to ask for a single name, or perhaps two or three. The wording "in such form" would give discretion to the Prime Minister to decide on the number of names to be put forward and whether they were ranked. Again, we believe that the discretion provided by the Bill is right.

The First Minister and the Deputy First Minister then apply the procedure in reaching their recommendations. Before finalising them, they consult with the Lord Chief Justice and then submit their recommendations to the Prime Minister together with whatever views the Lord Chief Justice has expressed to them. Alternatively, the Lord Chief Justice may copy his views directly to the Prime Minister. As we signalled at Second Reading, we felt it right that there should be a direct route for advice from the Lord Chief Justice to the Prime Minister before he makes his decision.

The Prime Minister will then consider the recommendations and will no doubt have regard to the advice that the Lord Chief Justice gave to the First Minister and Deputy First Minister. The Prime Minister will then make a recommendation to Her Majesty, who will make the appointment. I apologise for taking time to explain the procedure, but it is a fundamental issue of concern to the Committee. It is our interpretation of the meaning of the clause.

I turn to the specifics. On consultation with the Lord Chancellor, the process will happen only when devolution has occurred. When devolution has taken place, the Lord Chancellor will not have a role with regard to Northern Ireland. No one can fetter the discretion of the Prime Minister—if he wants to consult with the Lord Chancellor, the ways of government give him plenty of opportunity to do so. But it is wrong in principle to put that on the face of the Bill for the devolution reasons I have given, and perhaps it goes into more detail than is appropriate. It is possible for the Prime Minister to consult if he wants to do so.

I make a similar point with regard to the second issue about the First Minister and Deputy First Minister. They have to consult with the Lord Chief Justice, as well they should not least because his views will be communicated to the Prime Minister before the Prime Minister takes a view. We cannot see why they should not also consult with the Lord Chancellor for the reasons I have previously given. The Lord Chancellor does not have a role in the post-devolution world about which we are talking.

The noble Lord, Lord Glentoran, then asked: why only advice on procedure and not on substance? The Judicial Appointments Commission will be giving advice to the First Minister and Deputy First Minister on the process by which the selection will be run. I do not know what advice they will give—who can?—but clearly there must be the kind of procedures one would expect to see when senior and skilled appointments are put in place. There must be a fair process for indicating the people who can apply, clear criteria and clear processes for testing those criteria. That is the nature of their advice.

The process might or might not involve members of the Judicial Appointments Commission. As the noble Lord, Lord Glentoran, says, they have great expertise in these issues, but it is left open to them what they advise and then the process the First Minister and Deputy First Minister agree. But of course the First Minister and Deputy First Minister can agree that process only if they agree it with the Prime Minister as well.

That may sound complex, but it is complex for a purpose. It tries to ensure that no one person has absolute power in this situation. We believe that is right. There are some health checks and balances on the process as a consequence.

On the final point relating to the Prime Minister—it would be the case if the amendment were carried—the Prime Minister would have the choice of three names. The Bill as it stands allows the Prime Minister to ensure that that happens if he wants it to. Clause 4(3) includes the words "in such form". That means that if the Prime Minister decides as much, he can at the beginning of the process specify that he wants the best three candidates, ranked or unranked, with reasons. Therefore, as the Bill stands, he is at liberty. He may always want that; he may never want that; he might want two names; or he might want more. He should have discretion, which is the thrust of the argument put by the noble Lord, Lord Glentoran.

The world changes and one cannot always envisage how and in what way. That discretion left with the Prime Minister may be wise and helpful. It allows him to do exactly what the noble Lord, Lord Glentoran, wants, but does not specify that something must always be the case if he judges it to be otherwise. That is our clear view of how the process would work and our suggestion on how it would intercept with the objectives raised by the noble Lord, Lord Glentoran. I respect those objectives.

I believe that I have covered everything and perhaps a little more. The clause as debated on Second Reading reflects Recommendations 75 and 85 of the Criminal Justice Review. I hope that that explanation has been helpful.

Lord Mayhew of Twysden

That was a helpful explanation of the Government's understanding of the effect of the procedure. As the Minister said, at first sight it is slightly confusing because it starts at the end and works back to the beginning.

Perhaps I may make a textual point. The Minister said that the Prime Minister may require the recommendation of the Judicial Appointments Commission to specify one, two, three names or whatever. He says that that is achieved by the words, in such form as the Prime Minister may specify". I find that confusing because on reading the Bill I asked myself whether the Prime Minister would be able to specify that more than one recommendation should be made. He has told us that that is the intention and no doubt his advice is that that is achieved by the use of those words.

That is confusing and I wonder whether the provision ought not to be spelt out more explicitly. It could be done by inserting another subsection such as, Whatever form the Prime Minister shall specify shall in any event relate to whether the candidate shall be alone or with one or two others". But I am wondering whether it would not be better and safer for the Government to adopt the policy of requiring that in any event there shall be more than one candidate. That would remove from the Prime Minister the discretion to ask simply for a single candidate. My noble friend Lord Glentoran has touched upon the reasons that are peculiar to Northern Ireland.

There is much value in looking at the procedure adopted by the Church of England for the appointment of bishops. Lambeth sends two names to the Prime Minister and he can choose one or the other. They are listed in order of preference. He can say, "I don't like either of these. Try again". Under the settlement the Church achieved after a good deal of worry, it cannot send a single name.

Lord Filkin

Yes, it is our clear and firm view that the words, in such form as the Prime Minister may specify", leave it open to him to require one, two, three names or whatever. However, as this is an important issue I will treble check and will correspond with noble Lords. I have not received advice which puts doubt on that and signals a weakness, but it is critical.

Why not spell it out more clearly? If it is clear enough and the lawyers' advice is clear—and I shall confirm that in writing—there is no need to. Why not specify that there must always be two or three candidates? In essence, that sits on the delicate issue of how the Government are trying to work towards a devolved settlement. One would hope for a situation in which devolution works perfectly and that therefore the Prime Minister's role in the process would be minimal. There are good reasons for wishing that to be the case: the more that Northern Ireland is able to decide on its own affairs in ways that meet the tests of merit and probity that one would expect in a good society, the better. Therefore, there could be circumstances in which the Prime Minister was happy for one name to come forward.

There could be other circumstances when it was felt to be wiser to allow two or three names. In order to allow flexibility in seeing how devolution develops, it would be good to leave the element of discretion in the Bill as it currently is.

3 p.m.

Lord Glentoran

I thank the noble Lord for those explanations. They were very helpful. I am afraid that my brain is such that I shall need to study his comments more carefully in Hansard next week, and I may wish to return to this matter.

I have one question for the noble Lord: what happens before devolution? I thought that the idea of introducing the Bill now was that most of what it contains can be implemented without devolution. The noble Lord said that "in such form" the Prime Minister may make a request, and so on. I have tabled an amendment to try to ensure that that does not happen and that such a provision is not enacted before devolution. But if that amendment were not agreed to, and were the Bill to be enacted before devolution, can the noble Lord explain what would happen?

Lord Filkin

Yes. I should have expressed myself more clearly. The Bill will be enacted before devolution. Were there to be a vacancy—I hope and pray that that there is not to be one shortly—it would not he possible for the First Minister and Deputy First Minister to make a recommendation unless they were in place and devolution had occurred. That is what I was signalling. Unless they are in office and the Assembly has been reconvened and is functioning, there will be no one to fulfil the functions as set out in Clause 4.

Lord Glentoran

I hate to go into detail, but this is the right time. If there is no First Minister and Deputy First Minister and no devolution, but a Judicial Appointments Commission is in place—let us assume that there is a Lord Chancellor or that the Secretary of State at the constitutional department has taken the judicial oath—perhaps we shall need to have something in Hansard on how the Government see these appointments taking place.

Lord Filkin

Were there to be a vacancy for a Lord Chief Justice but devolution had not happened, the Lord Chancellor would make the appointment under the existing Act in the way that has just taken place.

Lord Glentoran

I thank the noble Lord for that, and I shall pursue that matter on Report, having read Hansard carefully. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos.32 to 34 not moved.]

On Question, Whether Clause 4 shall stand part of the Bill?

Lord Maginnis of Drumglass

I had not intended to pursue this issue until I heard the Minister clearly make a statement that although, before devolution, we were previously promised that the commission would not be formed—it was not advised when the Criminal Justice Review took place. That is really too much. Within two years, the Government will go back on a promise made to this House when the 2002 Act was passed.

Lord Filkin

I may have misunderstood the noble Lord, Lord Maginnis, on that point. As I was seeking to signal, we are bringing forward the establishment of the Judicial Appointments Commission, so that these elements in the appointment of the Lord Chief Justice cannot take place until devolution has happened. In earlier parts of our discussion, I sought to set out why I thought that appointments to the Judicial Appointments Commission were in the interests of Northern Ireland in advance of devolution. That matter was dealt with before lunch. Under Clause 4, those do not operate unless devolution has taken place.

The provision in Clause 4 also brings the process making senior judicial appointments more closely into line with the Criminal Justice Review's recommendations.

Lord Maginnis of Drumglass

I am grateful to the Minister for clarifying that matter. If I misheard or misunderstood what he said to the noble Lord, Lord Glentoran, I apologise. I am reassured by what he has just said and I am grateful.

Clause 4 agreed to.

Clause 5 [Removal or suspension from listed judicial offices]:

On Question, Whether Clause 5 shall stand part of the Bill?

Lord Kingsland

So concerned are the Opposition about this clause, that I thought it appropriate to devote the whole of my wind-up speech at Second Reading to it.

What is the motive behind this extraordinary change? It is not as though we have any evidence upon which to base it. Not only did the Act which the Government are now seeking to amend receive Royal Assent as recently as 2002; but we have as yet no experience whatever of its operation. In the absence of any convincing answer from the Minister, I am forced to conclude that the effect of the change will be to elevate political considerations as a factor in the dismissal of judges.

The 2002 Bill, already and inexplicably, removes the requirement of an address of both Houses of Parliament for the dismissal of newly appointed Northern Irish High Court judges—a requirement that has existed for more than 400 years. At least, however, under the 2002 Act, the First and Second Ministers will not be able to dismiss such a judge "without the agreement of the Lord Chief Justice"—a person himself only removable on an address of both Houses of Parliament.

Now, under the new Bill, the expression "without the agreement of the Lord Chief Justice" is to be replaced with the expression "except under consultation with the Lord Chief Justice". I ask the noble Lord the Minister: why on earth?

Lord Maginnis of Drumglass

Perhaps I may add my voice to that of the noble Lord, Lord Kingsland, on this issue. Again, I point out that less than two years ago the Government took the view—not blindly I hope, but with consideration—that it was appropriate to secure the agreement of the Lord Chief Justice before a holder of a listed judicial office could be removed or suspended.

Perhaps the Minister can say on how many occasions over the past 18 months the Lord Chief Justice has objected to, or refused to agree to, the removal or suspension of a holder of a listed judicial office. Has he displayed stubbornness and intransigence again and again? If the answer is no—as I suspect it is—then why is this clause in the Bill? If there have been, as I suspect, no such occasions of defiance or conflict as I have outlined, why are we here on this issue?

The noble Lord, Lord Kingsland, makes a very important point. To reduce the place, position and responsibility of the Lord Chief Justice as blatantly as does this element within the Bill is to elevate the opportunity—opportunities will, inevitably, be taken—for political considerations to gain dominance. With all sincerity, I ask the Government to look very carefully at the implications and the dire potential consequences of this change.

Lord Mayhew of Twysden

There can be very few issues more important to the rule of law than those surrounding the circumstances in which a senior judge can be removed. As has already been pointed out, that has been recognised in our constitutional arrangements for 400 years or more. To their credit, the Government patently recognised that in the 2002 Act. They stipulated not only that the recommendation of a tribunal to dismiss a judge and for a judge to be dismissed should be a matter of consultation with the Lord Chief Justice of Northern Ireland; they also stipulated that it should not take place save with his agreement.

In these days of transparent and open government, it would be helpful to know on what basis of consultation with the then Lord Chief Justice that provision was included in that Bill, which was subsequently enacted. Was the noble and learned Lord, Lord Carswell—then, Sir Robert Carswell—consulted and may the Committee know what his view about that was? Presumably, he concurred with the provision that his consent should be obtained. I believe that the Government argue that the Criminal Justice Review did not specify that that consent should be obtained. However, one assumes that it was thought necessary, and I should like to know why in 2002 it was felt that it should be obtained.

The noble Baroness, Lady Amos, was kind enough to write to me—for which I am very grateful—following a speech that I made at Second Reading when I alluded to this matter. She was kind enough to say that the noble and learned Lord, Lord Carswell, the then Lord Chief Justice, had been consulted about this amendment, which simply requires consultation. She did not tell me what his view had been. It would be helpful to know whether his view has been obtained. She also went on to say that Sir Brian Kerr, his successor as Lord Chief Justice, was to be consulted, and I expect that, by now, he has been. Therefore, I should like to have a good deal more light thrown upon this matter. It seems very strange that the Government now consider it necessary to dilute the requirement for the consent of the Lord Chief Justice to be obtained. I join the noble Lord, Lord Maginnis, and also my noble friend Lord Kingsland in asking why.

3.15 p.m.

Lord Filkin

As has been said, the clause removes the formal requirement for the Lord Chief Justice's agreement to the removal or suspension of a person from a listed judicial office. However, the Lord Chief Justice will be consulted on the removal. Clause 5 more closely reflects the recommendation of the Criminal Justice Review.

Perhaps I may set out why we do not believe that there is a risk or a weakness here in relation to the independence of the judiciary. First and fundamentally, the removal of a judicial office holder can only follow the recommendation of a judicial tribunal. Such a tribunal will be brought into existence either by, or in consultation with, the Lord Chief Justice. Therefore, at the start of the process, the Lord Chief Justice will be consulted or he himself may have convened the tribunal.

As the Committee will recall from the 2002 Act, the membership of the tribunal consists of two judges and one lay person. The nature of the judge varies according to the nature of the office holder who is being considered for misconduct. The appointment of the judge to the tribunal is recommended by the Lord Chief Justice. Therefore, the Lord Chief Justice has a very strong hand in setting up the tribunal and in its procedures, its terms of reference and its membership. At its simplest, there will always be two judges and one lay person on such a tribunal.

No judge can be dismissed unless such a tribunal recommends dismissal. That is stated categorically in the legislation. Therefore, the process is effectively in the hands of appropriately senior members of the judiciary with a lay member also present.

The question of who chairs the tribunal varies according to the level of seniority of the judge whose conduct gave sufficient cause for concern that it required a tribunal to investigate the issue. However, it would always be chaired either by a Lord of Appeal in Ordinary—a member of the Appellate Committee in this House—or by the Lord Chief Justice or a Lord Justice of Appeal. One of those three would always chair any judicial tribunal set up to investigate what were thought to be sufficient allegations of misconduct to warrant the tribunal. It is fairly clear that we anticipate that the circumstances in which such tribunals would be needed would arise only rarely, but that does not mean that it is not crucial and appropriate to have them.

I now turn to the other questions that were raised. The noble Lord, Lord Maginnis, rightly asked about the position of the Lord Chief Justice in such a situation. Like me, the noble Lord will have a chance to look at Hansard, but I hope that I explained the degree of judicial control over the tribunal process which leads to an investigation. The fundamental point is that a judge cannot be removed unless a tribunal so recommends. A tribunal will always be chaired by either the Lord Chief Justice himself, a judicial Member of the House of Lords or a Lord Justice of Appeal.

The question of consultation with the noble and learned Lord, Lord Carswell, and Sir Brian Kerr is a difficult issue on which to go into full detail. However, I can give a categorical assurance that the noble and learned Lord, Lord Carswell, has been fully consulted on these issues and that Sir Brian Kerr has also recently been consulted by officials in the Northern Ireland court service. Therefore, they have been part of the process of considering this matter, although I am not necessarily putting or not putting their names to it. I shall leave that question suitably anonymous.

I hope that I have explained why it is right to have a process which is so strongly under the control of the judiciary yet which, nevertheless, has a lay element in it. We believe that the clause as set out in the Bill is an appropriate means for investigating allegations of judicial misconduct, should they occur.

Lord Renton

Before the noble Lord sits down, I wonder whether he can explain one point. He referred to the need, or the possibility, of a Member of the House of Lords taking part in the final decision. However, is that provision based on the assumption that there will always be Law Lords in your Lordships' House?

Lord Filkin

That is one of the perennial problems of having a sequence of proposals which, as yet. have not all been put in place. I believe that this issue finds expression in the 2002 Act, which refers to members of the Appellate Committee of this House. Should we reach the point where that is changed, clearly amendments will need to be made to part of that Act in order to substitute a "member of the supreme court", if that is the terminology that we use.

Lord Mayhew of Twysden

I thank the Minister for that explanation. He majored, if I may express it in that way, on the input that the Lord Chief Justice would have in the setting up, and manning, of the tribunal. What I do not recall hearing him say is why it is necessary to make this change now. He has explained that there has been consultation. I can understand that there may be reasons for that. However, he has not explained to us, so far as I can recall, why the Government think it necessary within so short a time to make this change so that he Lord Chief Justice's consent, on top of his other input, no longer has to be obtained.

Lord Filkin

For two reasons. The noble and learned Lord, Lord Mayhew, being knowledgeable about Northern Ireland affairs, will have read the Hillsborough agreement as well as I have. More fundamentally, in many situations when a tribunal is set up, the Lord Chief Justice will already have been part of the process. So that situation is a circular one. When he is not part of the process, it will have been chaired by a member of the Appellate Committee of the House of Lords. In our view, one could hardly have a stronger test than that. And the final reason is that it brings us into line with the Criminal Justice Review report and if we think there is no strong reason not to do so, we do think that there is merit in doing so.

Lord Kingsland

Until 24 July 2002, when the Justice (Northern Ireland) Act 2002 came into force, all High Court judges in Northern Ireland were protected from dismissal by a requirement that it could only take place on an Address of both Houses of the United Kingdom Parliament. This procedure was replaced in the 2002 Bill by an equivalent double lock procedure. For a dismissal to take place, first the tribunal, with a majority of judges, was required to recommend dismissal. The second part of the lock was that the Lord Chief Justice of Northern Ireland also had to give his or her approval.

Thus the previous situation was the double lock of both Houses of Parliament. The new situation since July 2002 is the double lock of the tribunal and the Lord Chief Justice. The Government were entirely satisfied with that situation in the middle of 2002. They fought for it, they argued for it, they rationalised it. Now, less than two years later, the Government have decided to remove one of those two locks.

I have listened to what the Minister said with interest and a degree of sympathy. However, I am forced to conclude that a reasonable person, observing what the Government are proposing and listening to what the Government have said in this debate, would conclude that the reason for the removal of the second part of the lock is wholly political. There seems absolutely no legal rationality whatsoever for doing what the Government have done. If that conclusion is right, it is a very serious matter. I shall not ask your Lordships' House to vote on this matter today but shall certainly return to it at Report. I withdraw my objection to Clause 5 standing part of the Bill.

Clause 5 agreed to.

Baroness Farrington of Ribbleton

I beg to move that the House do now resume. In moving this Motion, I suggest to the Committee that we complete the Committee stage of this Bill next Monday.

Moved, That the House do now resume. (Baroness Farrington of Ribbleton.)

Lord Hylton

Perhaps I may ask the Government why they thought it necessary to continue this Committee stage on Monday. Why not finish it off today and be done with it?

Baroness Farrington of Ribbleton

That is generally accepted to be a matter for the usual channels. The allocation of time is discussed in detail. I know that the noble Lord, Lord Hylton, and other noble Lords who take part in debates on Northern Ireland will recognise that there is a degree of unpredictability about the length of time different parts of the legislation may take. As a courtesy to noble Lords, we discussed during the lunch break whether your Lordships would be prepared to go further on this Bill today knowing that we had agreed a break point. It would be discourteous to Members, not only those here now who are not prepared to continue further, but more importantly to those who wish to take part in the remaining stages of this Bill who had been assured that that would not happen today. I apologise to the noble Lord, Lord Hylton. It is very unusual to stand at this Dispatch Box and apologise to the House for us rising early.

On Question, Motion agreed to.

House resumed.

House adjourned at twenty-six minutes past three o'clock.

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