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Lady Hermon: 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.
Mr. Browne: 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.
Mr. Blunt: 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".
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.
5.15 pm
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—
Mr. Blunt: 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.
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