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Standing Committee F
Tuesday 29 January 2002
[Mr. Peter Pike in the Chair]
Amendment proposed [this day]: No. 86, in page 1, line 10, after 'Appeal', insert—
'or Judge of the High Court'.'—[Lady Hermon.]
Question again proposed, That the amendment be made.
The Chairman: I remind the Committee that with this we are taking 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).
The Parliamentary Under-Secretary of State for Northern Ireland (Mr. Desmond Browne): I welcome you to the Chair, Mr. Pike. You had some flavour of the issues that the Committee will have to address when you chaired the Programming Sub-Committee this morning. Before lunch, your fellow Chairman expressed regret that he had to interrupt me in full flow. Perhaps you could pass my gratitude to him for interrupting me, because there is always more time, and he has given me an opportunity to reflect more carefully on what I was saying. I have revisited some of the reservations that I expressed this morning, and I no longer hold them.
I have again considered the amendments tabled by the hon. Member for North Down (Lady Hermon), and I think that I now understand them better. I shall try to explain my understanding of them. I hope that she will bear with me and accept my apologies if my earlier comments reflected an incomplete understanding of the group. Perhaps I should ask her to confirm whether my understanding is now correct.
The intention of the amendments is to give High Court judges the same tenure as the Lord Chief Justice and the Lord Justices of Appeal. My earlier comments attempted to draw out whether a change had been proposed to the appointments arrangements for High Court judges, but that does not seem to be so on reflection. Part of the reason for my comments—I have to give some excuse—is that the amendments
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would not entirely achieve what the hon. Lady would like. That does not matter, as they allow us to debate the issue.
The hon. Lady appears to propose that High Court judges continue to be appointed by the commission, but that they continue to fall within the provisions of clause 6 on dismissal, along with the Lord Chief Justice and the appeal court judges. The amendments are not complete, as various consequential amendments would be needed to meet the hon. Lady's objectives, especially on appointment. That would involve the addition of the words ''and judges of the High Court'' at various places, but we need not concern ourselves too much about that.
At this stage, it would help if the hon. Lady would suggest in some way that I have a basic understanding of what she seeks to achieve. Whether or not she does so, I shall proceed.
The hon. Lady has accepted the proposed split on appointment, so I would be grateful if she would reconsider whether it would be more appropriate to be consistent on how the removal provisions were applied as well. The review's recommendation, which will be enacted in the Bill, is in line with Scotland, where appointments and removal to the equivalent level are devolved. Clause 6 differs from clause 7 in the way in which removals can be organised. In all cases, a tribunal needs to be established under the Bill to decide whether dismissal is appropriate. In the case of the Lord Chief Justice and the Appeal Court judges, there is an additional element to the proceedings. If the tribunal recommends dismissal, the matter also needs to be approved by both Houses of Parliament.
In a sense, that provides a greater level of protection. In practice, the different procedure reflects differences in the appointments process rather than the need for greater protection. The tribunal would still be the key element in proceedings. Given that Her Majesty appoints the most senior judges, it would not be appropriate to permit their removal without a vote of Parliament.
As I understand it, the hon. Lady is content that the appointments procedure for High Court judges should differ from that for the Lord Chief Justice and the Appeal Court judges. I hope that she agrees that the logical consequence of that is that they should also fall under the clause 7 provisions. The different process for removal is a reflection of the different process for appointment.
Lady Hermon (North Down): It is nice to see you in the Chair, Mr. Pike. I should like to explain to the Minister that I will later speak to amendment No. 126, but I am not sure whether I can speak about it in an intervention now.
I was especially struck by what he said about the appointment to senior judicial offices. An ambiguity arises from the title of clause 4, which is
Appointment to most senior judicial offices.
The Chairman: Order. Interventions must be brief. The hon. Lady has referred to an amendment that we have not yet reached.
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Mr. Browne: I am grateful to the hon. Lady for pointing that out. She knows, as do I, that although the title of the clause may be of assistance in interpreting it, one has to consider the clause itself to see its effect. Clause 4 deals appropriately with the appointment of the Lord Chief Justice and the Lord Justices of Appeal. New section 12A of the Judicature (Northern Ireland) Act 1978, which is proposed in clause 4, deals with the pre-devolution position.
In any event, perhaps it is better to deal with amendment No. 126 when we come to it. We should concentrate on the group of amendments under discussion.
The Chairman: That would be helpful.
Mr. Browne: Considering the amendments in totality, we accept that there should be a difference between the appointment of judges on the list in schedule 1 and the most senior judicial appointments. For ease of debate, I shall refer to the former group as being devolved.
The hon. Lady seems to have moved judges of the High Court into the same position as that of the most senior judges, in terms of the provisions that relate to their removal in certain restricted circumstances. I am trying to simplify the Government's position, as it is simple, essentially. If the appointment is devolved, the process for removal has to reflect that appointment and be devolved. The fact that the appointment of the most senior judges is at the hands of Her Majesty means that their removal has to be different from the devolved process, and has to involve a motion before both Houses. That is the reason for the difference, not because some view has been taken of the importance of the judges, although some are clearly in more senior positions than others. If she accepts that a devolved process of appointment is appropriate, a devolved process of removal is also appropriate.
Lady Hermon: Will the Minister clarify one point? Is it possible for the First Minister and the Deputy First Minister, acting jointly under subsection (2), to add the office of judge of the High Court?
Mr. Browne: I was coming to that. It is appropriate for me to repeat the position that I outlined this morning in dealing with another amendment.
Amendment No. 87 is designed to prevent the First Minister and Deputy First Minister from using their power to make orders under subsection (2) to bring the offices of High Court judge, Lord Chief Justice and Lord Justice of Appeal into the remit of the Judicial Appointments Commission. For the reasons that I set out this morning and that I repeat, the Government's position is that, as the Bill is framed, the amendment is unnecessary.
The review's policy was not to extend devolution to the most senior posts. I accept that, and that is what we are trying to reflect. Because of the way in which the Bill is structured, any order made under clause 2 would require a cross-community vote under clause 82(2)(a), and the agreement of the Lord Chief Justice. Our position is that the safeguards are sufficient to prevent any disruption of the review's policy in the context of the Bill.
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I accept that there is the theoretical possibility of an order, as the hon. Lady suggests, and I undertake that we will consider further whether a clarifying amendment would be helpful. However, I would argue that it would not add anything to the Bill other than to clarify the existing position. If the hon. Lady is reassured by that explanation, and if she can bring herself substantially to ignore some of what I said this morning, I hope that she can be persuaded to withdraw the amendment.
Mr. Edward Garnier (Harborough): I am genuinely trying to be helpful. It may be that because I was not here immediately before the Committee adjourned I missed the answer to the question that I am about to ask the Minister.
Appointments made under schedule 1 are described as devolved and other higher appointments may be described as Whitehall appointments. Has the Minister explained the logic of placing judges of the High Court on the devolved list as opposed the Whitehall list? Is there some magic to that decision? It may well be that the Minister has already explained that and it is my fault for not having heard him.
Mr. Browne: The review recommended that the new Judicial Appointments Commission should appoint all judges up to and including High Court judges. It did so by implicitly drawing the comparison that I drew earlier with the cut-off point in the rest of the United Kingdom, particularly Scotland. Other international considerations were taken into account. As I said this morning, the review considered it appropriate for the devolved mechanism to apply to that level and the Government agree with its conclusions.
Principally, the review made the recommendation in the context of the totality of its recommendations and for the purposes of consistency with the way in which devolution operates in Scotland. If I remember correctly, in pre-devolution days, when the Secretary of State exercised some of the powers involved, the division between the Secretary of State and the Prime Minister occurred at the High Court judge level. I may be wrong about that, but that is roughly how the division works now, under devolution.