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Mr. Dodds: I support what other hon. Members have said about this important matter. It is not a trivial point but goes to the heart of the central issue of the independence of the judiciary in Northern Ireland. We require a cogent explanation of the Government's proposal to remove the power of the Lord Chief Justice to veto the removal of a high court judge, given that they only inserted such a power two years ago. So far, such an explanation has been completely missing from all the debates in another place and in Committee that I have read. The Minister owes the House a clear explanation of why the Government are taking this radical step.

Clause 5, which is entitled

states that

the Lord Chief Justice is to be replaced by the phrase, "except after consultation with" the Lord Chief Justice. Will the Minister explain what would happen if consultation took place with the Lord Chief Justice and the most senior judge in Northern Ireland made it clear that he was not, for whatever reason, in favour of the removal of the judge in question? Although it is sincerely to be hoped that such a situation would not arise, is it really politically conceivable that the First Minister and Deputy First Minister would press ahead regardless?

The reasoning and logic that lay behind giving this power to the Lord Chief Justice in the first place was right and proper. The problem is not that the Government's argument for the change is flawed, but that they have advanced no argument at all. I look forward to the Minister's response, but if he has nothing cogent to say, my hon. Friends and I will be happy to join the hon. Member for New Forest, West (Mr. Swayne) in dividing the House on the matter.

Mr. Spellar: During the preparation of the Justice (Northern Ireland) Act 2002, every effort was made to ensure that the legislation contained a balance of provisions that built up the criminal justice system. In some instances, we added provisions that were
 
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supplementary to the recommendations of the criminal justice review. The Government are always being encouraged to check our policies against the recommendations of the review. On reflection, we decided that some of the provisions put in place by the 2002 Act are unnecessary. This is a case in point. As hon. Members have explained, the clause removes the requirement for the Lord Chief Justice's agreement to the removal or suspension of a person from a listed judicial office. The Lord Chief Justice will, however, be consulted on the removal. That change more closely reflects the recommendation of the criminal justice review.

Mr. Trimble: Can the Minister refer me to the specific part of the criminal justice review—the exact language—that he is relying on? That would be helpful to the House.

Mr. Spellar: Yes, I will shuffle rapidly through my papers and refer the right hon. Gentleman to that particular section. The criminal justice review recommended that the

It does not, therefore, envisage a subsequent veto on the decision of such a tribunal.

Hon. Members have rightly pointed out that it would be unlikely that there would be circumstances that would lead to the setting up of such a tribunal. Let us also remember that such a tribunal would include two of the highest judicial office holders in the land. That would also mean that the body had been set up by the Lord Chief Justice, who would have agreed to the procedure to be followed by the tribunal.

Mr. Trimble: I hope that the Minister is not trying to mislead the House by saying that the tribunal would be set up by the Lord Chief Justice. The 2002 Act provides that it might be set up by him, but it also provides that such a tribunal could be set up by the First Minister or Deputy First Minister, after consulting the Lord Chief Justice. It does not follow, therefore, that the Lord Chief Justice would set up the tribunal in all cases. Nor does it follow, as the Minister said earlier, that the tribunal would consist of persons holding high judicial office. The Act provides that it can consist of

such office. That includes persons who might now be retired. The Minister needs to be more precise about this.

Mr. Spellar: I thank the right hon. Gentleman for that. A Lord of Appeal in ordinary, the Lord Chief Justice or another senior judge would chair such a tribunal. There would also be a senior judicial member as well as a lay member. As I said earlier, the Lord Chief Justice would also determine the procedure of these removal tribunals. In those circumstances, there would
 
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be considerable involvement by senior members of the judiciary. As my colleague, Lord Filkin, said in another place:

It is, therefore, legitimate to say that, in the difficult circumstances in Northern Ireland, no single person, however high or low, can appoint a judge, and that no single person can veto the removal of a judge.

Mr. Garnier: if those arguments are so stunning and unarguable, why did the Government not advance them during our deliberations on the 2002 Act? The Minister is in danger of making up constitutional policy on the hoof.

Mr. Spellar: Following the passage of that Act, we have reflected on the situation to see—as we are often pressed to do—whether matters are in accord with the criminal justice review and to examine whether the measures are appropriate. Here we have a situation in which senior members of the judiciary would be involved every inch of the way. I hope that the hon. and learned Gentleman will accept that we are dealing with a very unlikely set of circumstances. Given that that is the case, we are dealing with a situation in which the senior judiciary is involved right the way through the procedure. Would we therefore want to put the Lord Chief Justice in a position in which he effectively had a veto over the decisions of a tribunal in which he and the senior judiciary had been so involved? To some extent, the onus is on the hon. and learned Gentleman to argue why a single person as eminent as the Lord Chief Justice—any Lord Chief Justice—should have such a unilateral right of veto in those circumstances.

Mr. Garnier: I used the opportunities provided by our deliberations on the 2002 Act to do a lot of arguing, much of which was against the Government's proposals. The Minister has already been exposed for placing false reliance on what he thought was in the criminal justice review and what he thought was in the 2002 Act. We are all entitled to know on what factors he has based this decision. It is no good simply saying, "It's unlikely", or "It's unthinkable." He has presumably applied his mind to the drafting of the Bill and has some cogent reason, which we would like to hear, for entertaining this volte-face.

Mr. Spellar: I resent the hon. Gentleman's implication. I draw his attention to recommendation 104 in paragraph 6.136 of the review, which states:

as the right hon. Member for Upper Bann (Mr. Trimble) pointed out—

There is nothing in that to imply or state that there should be a veto by the Lord Chief Justice within that procedure. There is no mention of a veto.

Mr. Swayne: Of course, that recommendation is perfectly satisfied by the 2002 Act as it stands. The
 
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recommendation says nothing about such a decision not being revoked subject to the agreement of the Lord Chief Justice. Recommendation 104 has already been satisfied by the existing legislation.

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