Justice (Northern Ireland) Bill

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The Chairman: With this we may discuss the following amendments: No. 152, in page 4, line 3, leave out 'may' and insert 'shall'.

No. 129, in page 4, line 5, leave out

    'First Minister and deputy First Minister acting jointly,'

and insert 'Lord Chancellor'.

No. 130, in page 4, line 9, leave out from first 'the' to second 'of' and insert 'Lord Chancellor's Department'.

No. 131, in page 4, line 12, leave out 'Office' and insert 'Department'.

No. 132, in page 4, line 14, leave out from 'the' to 'may' in line 15 and insert 'Lord Chancellor'.

No. 133, in page 4, line 21, leave out from first 'the' to second 'of' and insert 'Lord Chancellor's Department'.

No. 134, in page 4, line 23, leave out 'Office' and insert 'Department'.

Lady Hermon: It may help the Committee if I explain that, through schedule 3, clause 5(1)

    ''transfers to the First and deputy First Minister, acting jointly''—

the words that I find so difficult—

    ''the power to make appointments, or recommendations for appointment, to listed judicial offices and makes provision about associated functions''.

I seek clarification from the Minister, so I ask him to intervene usefully in a moment or two.

Clause 4 specifically provides a procedure for the appointment of judges to the High Court on the recommendation of the First Minister and Deputy First Minister, acting jointly. As was brought out by

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the hon. Member for Reigate, High Court judges are included in the list of judicial offices in schedule 1, to my bitter regret. Please will the Minister clarify the position of the appointment of High Court judges?

Mr. Browne: High Court judges and tiers below that, including tribunals and lay magistrates, are listed in the judicial offices in the schedule. The appointments system that applies to them was ably explained by the hon. Member for Reigate in relation to the previous group of amendments. The difference between them and more senior judges is that the First Minister and Deputy First Minister have a consultative role in respect of the senior judicial offices, but their role in relation to other appointments is to make recommendations.

Lady Hermon: I appreciate the Minister's intervention. I shall read the record of our proceedings very carefully, not because I disagree with what he says, but simply to clarify it in my head.

The listed judicial offices are those set out in schedule 1, and they are the less senior judicial appointments, including, regrettably, those to the High Court. The points that I raised in relation to clause 4 are even more pertinent to clause 5. The clause provides that the First Minister and Deputy First Minister will have the power, provided that they act jointly, to make appointments to at least 34—I hope I am right—different levels of the judiciary. That is a huge number of appointments. I do not intend to rehearse my concerns again but we must face the reality that the First Minister and Deputy First Minister will not always agree. Will the Minister resolve that issue?

Mr. Browne: The answer to the hon. Lady's question about stalemate arising as a result of a failure to act jointly lies in Government amendments No. 70 and 71, which are in the next group of amendments. The Government's position is that the amendments are unnecessary but, for the purposes of clarification, it will be helpful to include them so that there can be no question but that the Bill reflects the review's recommendations.

Lady Hermon: I am pleased that the Government spotted the anomaly and tried to address it by tabling amendments. However, it remains my view that the reference to the First Minister and Deputy First Minister should be omitted altogether and replaced by the Lord Chancellor.

Mr. Browne: The hon. Lady is perfectly right. Her amendment would remove the First Minister and Deputy First Minister from having a role in the appointments process and would replace them with the Lord Chancellor. She has already ably articulated why she believes that that should be the case. The Committee should be familiar by now with the Government's position, because I have already said several times that the review and the Bill make it clear that devolving judicial appointments is a key part of the wider judicial process. It would be inconsistent to devolve that function while retaining a role for the Lord Chancellor. Equally, however, our policy on

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judicial appointments before devolution remains, so that those powers will stay with the Lord Chancellor and the commission will be set up only on devolution. I hope that that provides the necessary clarification, although I gather that it will not persuade the hon. Lady. I urge her to withdraw her amendments--all the amendments in this group were moved by the hon. Lady.

The Chairman: Order. Only one amendment is moved. Amendment No. 127 has been moved and amendments Nos. 152, 129 and 134 are grouped with it.

Mr. Browne: The hon. Member for Montgomeryshire (Lembit Öpik) tabled amendment No. 152, which is designed to address the potential confusion dealt with by amendments Nos. 70 and 71—

4.45 pm

Mrs. Calton: It might be helpful to the Minister if I said that the reason that I have not spoken to that amendment is that the concerns that it was designed to address are dealt with by Government amendment No. 70. We do not intend to press amendment No. 152.

Lady Hermon: The Minister is right. He has picked up on my body language. I am not happy with this at all. I am keen for criminal justice functions to be delegated to the Assembly, which is where I think they belong. I am concerned, however, that our on-going concentration on the First and Deputy First Ministers acting jointly will, in the long run, act as a block on the devolution of those functions to the Assembly.

Mr. Turner: My hon. Friend the Member for Reigate made the point that, in the absence of agreement between the First Minister and the Deputy First Minister, the commission's proposals will proceed. Is it the hon. Lady's understanding—I am quite confused about the matter—that that applies in the case of these particular appointments?

Lady Hermon: That is not my understanding of the effect of the Government's amendment.

Mr. Browne: I shall try again to explain. I may not be getting through to the Committee. Alternatively, it may be that the hon. Lady and the hon. Member for Isle of Wight understand the position, but have a point of principle in relation to the Lord Chancellor, which I understand but do not accept.

The position in relation to all appointments from High Court judge down—if that is not disparaging to those who hold other judicial posts—and tribunal appointments, is that the First Minister and Deputy First Minister, as recommended by the review, will make the recommendation for appointment in some cases and appoint in others. They will do so on a recommendation of the Judicial Appointments Commission. If they fail to accept that recommendation and act upon it, they are required to send the matter back to the Judicial Appointments Commission. They must accept the next recommendation; there can be no stalemate.

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For senior judicial appointments, the Prime Minister makes the recommendation to the Queen for the appointment, and the roles of the First and Deputy First Minister are that of consultees. They may be consulted jointly, and it would be helpful if they had a joint view, but the Bill does not require them to agree on their contribution to the consultation process.

Lady Hermon: I am happy to report that the Minister and I are actually in agreement this afternoon on his interpretation of amendment No. 70. I thank him for that. I do not intend to say anything further, except to record my disappointment. I feel that the words ''acting jointly'' could mean that there would be no devolution of criminal justice functions to the Assembly. However, I can see that the Minister has no intention of giving way on the matter, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Browne: I beg to move amendment No. 70, in page 4, line 14, leave out from beginning to 'by' in line 15 and insert—

    'If the First Minister and deputy First Minister do not (within a reasonable time after receiving the report under subsection (4)(b)) appoint or recommend for appointment the person selected by the Commission, they must'.

The Chairman: With this it will be convenient to discuss the following: amendment No. 162, in page 4, line 14, leave out subsection (5) and insert—

    '(5) If one month after receipt of a report under sub-section 4(b), the First Minister and Deputy First Minister, acting jointly, have not approved the decision of the Commission, it must reconsider its decision.'.

Government amendment No. 71.

Amendment No. 153, in page 4, line 24, at end insert—

    '( ) If the Commission re-affirms its selection, the First Minister and deputy First Minister are required to appoint, or recommend for appointment, that person to the listed judicial office.'.

Amendment No. 161, in page 4, line 24, at end insert—

    '(6A) The First Minister and Deputy First Minister, acting jointly, must appoint or recommend for appointment, any person selected or re-affirmed under sub-section (6).'.

Mr. Browne: Because of the debate on the previous two groups of amendments, we now have a unanimous understanding of the provisions of the amendments and their effect.

The Chairman: The Chairman certainly understands.

Mr. Browne: My impression, Mr. Pike, is that the Chairman understands quite a lot before we do.

The other amendments cover the same ground, and I ask that they are not pressed, because I am satisfied that the issues that they seek to deal with are already covered by the Government amendments.

Amendment agreed to.

Amendment made, No. 71, in page 4, line 24, at end insert—

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'(6A) The First Minister and deputy First Minister must, on being informed by the Commission of the outcome of the reconsideration of its decision, appoint, or recommend for appointment, the person selected by the Commission after the reconsideration.'.—[Mr. Browne.]

Clause 5, as amended, ordered to stand part of the Bill.

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Prepared 31 January 2002