Mr. Mallon: I thank the Minister for his comments, the hon. and learned Member for Harborough for a valid point about the oath, and the hon. Member for North Down for the point that she made on human rights legislation. The Minister and the two Members are right up to a point. That point is something that will always be at variance when it comes to writing legislation, but a lay person would want to know what it is and how legislative draftsmanship, as the hon. and learned Gentleman rightly said, would write it so that secrecy is maintained at all times. The three points were valid, and I thank the hon. Members for helping me to make up my mind. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Mr. Browne: I shall speak briefly, given that we have extensively debated aspects of the clause.
The clause places those with responsibility for the administration of justice in Northern IrelandI defined them earlier, so will not go over that againunder a duty to uphold the continued independence of the judiciary. The criminal justice review group's terms of reference under the Belfast agreement specifically required that it should consider safeguarding the independence of the judiciary. In making its recommendation, the review group drew on views expressed during the consultation period and took account of human rights instruments and international best practice. It recommended that primary Westminster legislation enshrine the independence of the judiciary, and the Government agree that the independence of the judiciary is of paramount importance and must be protected. I commend the clause to the Committee.
Mr. Blunt: I rise to support the clause, but wish to draw attention to the wide-ranging nature of the debate, the importance of words in defining ''independence'' and the difficulty in defining such concepts. It is extremely difficult to nail these things down precisely. We examined the clause by reference to the experiences in Northern Ireland and the attempts to administer justice in Scotland, Zimbabwe
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and other jurisdictions where circumstances are either normal, abnormal or, as in the case of Northern Ireland, somewhere between the two.
What seemed an entirely uncontroversial clause has properly taken some time in the Committee. We have had an opportunity to examine immensely important concepts, and we shall want to return on Report to the issue of the independence of the legal profession. I am grateful to the hon. Member for Newry and Armagh for proposing the amendment. It showed how difficult and important the issue is in the context of Northern Ireland and the Belfast agreement. Our consideration must be careful, and we must understand the meanings that words have for different parts of the community, knowing perfectly well that the word ''community'' is somewhat loaded, as well.
Lady Hermon: I wish to add my support for the clause to that of the hon. Member for Reigate and the Minister. I also wish to record my appreciation of the hon. Member for Newry and Armagh for withdrawing amendment No. 80. Like him, I believe that we are dealing with sensitive issues. I hope that we in the Committee can agree to disagree in a tone and manner that are pleasant and constructive.
Lembit Öpik: Without the clause, the Bill would not make much sense. Nevertheless, we have had the debate and concluded that we need it. As we have covered the points, I hope that we can maintain a shorthand as we proceed. We have spent a lot of time on the issues, and there would not be much benefit in returning to them repeatedly.
Question put and agreed to.
Clause 1 ordered to stand part of the Bill.
Appointment and removal
Lady Hermon: I beg to move amendment No. 86, in page 1, line 10, after 'Appeal', insert
'or Judge of the High Court'.'
The Chairman: With this it will be convenient to take the following amendments: No. 87, in page 2, line 9, at end insert:
'( ) No order under subsection (2)(a) may add an office listed under subsection (1)(a).'
No. 88, in schedule 1, page 70, line 4, leave out:
'judge of the High Court.'
No. 128, in clause 5, page 4, line 4, after 'judicial offices', insert:
'or the office of Judge of the High Court'.
No. 135, in clause 6, page 5, line 31, leave out subsection (10).
No. 136, in clause 7, page 6, line 6, leave out subsection (7).
Lady Hermon: I apologise for a typing error in amendment No. 86: ''or'' should read ''and''.
The amendments relate to the classification of members of the judiciary. The purpose of amendment No. 86 is to approve High Court judges. The number
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of judges in Northern Ireland is small compared with the rest of the United Kingdom. We have seven such judges. In the amended clause, High Court judges would be listed and considered with the office of the Lord Chief Justice, and the Lords Justices of Appeal, of which Northern Ireland has three. In clause 2(1)(a) and (b), the offices of the Lord Chief Justice and the Lord Justice of Appeal stand on their own. The offices of the other judicial members are listed in schedule 1. For ease of reference, schedule 1 is on page 70 of the Bill. It is proposed that High Court judges are listed with county court judges and members of the mental health tribunal, but I believe that they should be considered with the Lord Chief Justice and the Lords Justices of Appeal.
Amendments Nos. 88 and 128 are simply paving amendments that are necessitated by my proposed change to clause 2. I want the Minister to consider the reclassification of the High Court judges because of the implications for their appointment and, more importantly, for their removal. The procedure in clause 6(10) does not apply to High Court judges. Instead, High Court judges can be removed under clause 7(2)
''by the First Minister and deputy First Minister, acting jointly.''
Amendments Nos. 135 and 136 seek to delete the reference to the removal of High Court judges in those two clauses. The only way that High Court judges could be listed in clause 2 with the Lord Chief Justice and the Lords Justices of Appeal would be under clause 2(2), which states that the First Minister and Deputy First Minister, acting jointly, may by order add or omit an office to those mentioned in schedule 1. The amendment would provide that clarification, so it is an easy amendment to accept. The seven High Court judgesnot a great numbershould be classified with the other senior judicial appointments of the Lord Chief Justice and the Lords Justices of Appeal.
Lembit Öpik: Having listened to the hon. Lady, it seems clear that she and her party are attempting to codify High Court judges in a different way than originally suggested in the Bill. Her rationale convinces me that the proposal is sensible and I look forward to hearing what the Minister has to say about it.
Mr. Browne: I am grateful to the hon. Lady for explaining the amendments to the Committee. I shall endeavour to deal with them in the same order and clarify the Government's position. My interpretation of the amendments generally suggests an inherent inconsistency. If it is accidental, the Government will have the opportunity to instruct Parliamentary Counsel on drafting. Words sometimes creep in. I shall attempt to summarise the hon. Lady's argument and the Government's response. I hope that she will make it clear if she believes that I have misunderstood her.
Amendments Nos. 86 and 88 are designed to include High Court judges within the procedures for appointment to senior judicial office and to remove them from the remit of the Judicial Appointments Commission. If the amendments were accepted, the
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Judicial Appointments Commission would have no power to recommend appointments at High Court level.
Amendment No. 128, however, would do the exact opposite. It would require all appointees to the High Court to be recommended by the commission, which is what the Bill provides. If I am wrong, the hon. Lady will point it out, but that seems to be the effect of the amendment. It is important to understand the historical context. Under Stormont, the appointment of High Court judges was reserved to Westminster, and the hon. Lady wants to retain the distinction. Whatever the arguments in the past, we are confident that the structures proposed in the Bill and by the review will prove strong enough to bear the devolution of appointments at this higher level.
Significantly in the UK context, the review's recommendations are exactly in line with what takes place in Scotland, where appointments to the equivalent level are devolved. The hon. Lady will be aware that a Judicial Appointments Commission is currently being appointed, although in a different fashion from what is proposed in the Bill. The Scottish context is similar, and there is merit in consistency with
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respect to devolved Administrations. I well know that Scotland is not Northern Ireland because I have travelled between them on more than one occasion. The Government also see merit in consistency within the United Kingdom context in respect of responsibility for appointments.
Amendment No. 87 would prevent the First Minister and Deputy First Minister from using their order-making power under clause 2(2) to bring the offices of Lord Chief Justice and Lord Justice of Appeal into the remit of the Judicial Appointments Commission. The amendment is probably unnecessary. The review made it clear that it was not policy to extend devolution to those posts. Any order under clause 2 would require a cross-community vote under clause 82(2)(a), and require the agreement of the Lord Chief Justice. Surely those are safeguards enough for protecting the policies expressed in the review and accepted by the Government.
The hon. Lady expressed the theoretical possibility of an order
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The following Members attended the Committee:
Conway, Mr. Derek (Chairman)
Campbell, Mr. Gregory
Clarke, Mr. Tony
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Turner, Mr. Andrew