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Clause 105

Removal from most senior judicial offices

Mr. Leslie: I beg to move amendment No. 3, in clause 105, page 46, leave out from end of line 17 to 'unless' in line 19 and insert

'or, if the Lord Chancellor is not a member of that House, by another Minister of the Crown at his request.

(4)   No motion for the presentation of such an address may be made'.

The First Deputy Chairman of Ways and Means (Sylvia Heal): With this, it will be convenient to discuss Government amendments Nos. 4 and 16.

Mr. Leslie: These amendments are consequential on the removal of the requirement that the Lord Chancellor be a member of the House of Lords, which was debated in Standing Committee and agreed yesterday on the Floor of the House.

As drafted, clause 105 provides in that in the House of Lords only the Lord Chancellor may make a motion for the presentation of an address by Her Majesty to remove a senior judge in Northern Ireland.

Government amendment No. 3 provides that, where the Lord Chancellor is not a member of the House of Lords, he or she may request another Minister of the Crown to make a motion to that House for the presentation of an address to Her Majesty for the removal of a person from office as a senior judge. Clause 105 also provides that, before making such a motion in the House of Lords, the Lord Chancellor shall lay before that House a copy of the removals tribunal's report. Therefore, to make that consequential change, Government amendment No. 4 provides that that could be done by the other Minister making the motion.

Government amendment No. 16 makes similar consequential amendments to the post-devolution arrangements governing removal from most senior
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judicial offices in Northern Ireland. Those arrangements are prescribed in section 12B of the Judicature (Northern Ireland) Act 1978, as substituted by section 6 of the Justice (Northern Ireland) Act 2002.

These amendments are essentially consequential on yesterday's decision by the Committee to remove clause 2 of the Bill.

Sir Patrick Cormack: The Minister rightly says that these amendments are consequential on yesterday's decision by the Committee, but he will concede that the Bill must return to the other place after our deliberations here. There will therefore be further opportunity for their lordships to reflect on what has been said in this House, and to pronounce upon it. If the other place reinserts clause 2, or something similar, and requires the Lord Chancellor to be a Member of the House of Lords, I hope that the Government will not insist on their proposals.

It is highly unlikely that we will have to wait until 2006 for a general election, but even so the Parliament Act cannot be invoked for this Bill, as it began in the House of Lords. The Government are likely to get most of what they want, even though the Bill, when it was first presented, was very rough. I therefore hope that they will not reject any insistence by the other place that the Lord Chancellor should be a Member of the House of Lords.

I should be grateful to hear what the Minister has to say about that.

Mr. William Cash (Stone) (Con): I am concerned about the reference in proposed section 12B(1) of the Judicature (Northern Ireland) Act 1978 to holding office "during good behaviour". What do those words mean? Our Parliament was established as a result of the deal struck when the Stuarts abdicated in 1688, and one piece of the resulting legislation was the Act of Settlement of 1700. That and other contentious issues in respect of who governs this country lay at the heart of the great historical events—the civil war, the driving out of James II, the battle of the Boyne, and so on—which collectively are known as the Glorious Revolution.

Another important question at that time was the extent to which judges determined the laws of the land, and the basis on which they did so. The question of whether a judge should be removed because he had infringed the principles of good behaviour were well understood at that time. I am glad to say that the principles that judges accept, certainly on matters of law, are adhered to, as far as we know, in every respect. However, the substitution of quando bene gesserint, which means during good behaviour, for durante bene placito regis, which means at the pleasure of the king, was a fundamental shift. The expression "at the pleasure of the king" was removed because it was clear that the king had such overriding control that he could remove a judge who had the temerity to disagree with the king's assessment of policy on, for example, the suspending power, the dispensing power and so on. The expression "during good behaviour" raises the question of misconduct.
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4 pm

At the end of the Bill there is an interesting amendment that has not yet been discussed. I cannot put my finger on it straightaway, but I would like the Minister to explain the amendment to section 11(3) of the Supreme Court Act 1981 and the way in which misconduct will be dealt with. The Minister may know what I am referring to, but I realise that he may not have a clue.

The significance of the amendment is simply that misconduct in the context of judicial office would today be considered to be corruption, conflict of interests and so on. Not so long ago, things got a bit tricky when a question arose as to whether a judge had a conflict of interests because of his interest in a charity, but I will not go into that now. Generally speaking, I am entirely satisfied that our judges, whether here or in Northern Ireland, are of impeccable character and would not infringe the rules of misconduct, corruption and so on.

Misconduct, under the original proposition of "during good behaviour"—I shall not repeat the Latin for that—was well understood at the time as going much further. It was part of the settlement in 1700 that judges would have regard to the importance of maintaining the stability of the constitution and to the political and constitutional principles underpinning the deal.

What would happen under clause 105 if the question arose—we sincerely hope that it would not— of removing the Lord Chief Justice, Lords Justices of Appeal, judges of the High Court or any other judges who fall within the rubric? Can we be certain that the question of what constitutes good behaviour is clearly understood? We could thus understand from the Minister that good behaviour is not confined simply to what we might generically describe as corruption, which I am certain would not be the case, but that the matter is much wider and involves questions relating to the Oath of Allegiance or matters of that kind.

We might end up in a situation where a judge decided wilfully, or perhaps deliberately—there are various gradations—that the decisions reached by, for example, the European Court of Justice had overriding power of interpretation as compared with the rules that we understand to apply. We discussed them yesterday, and I believe that the Government have accepted the point that I have been making for several years: at the end of the day, the judges of this country are under an obligation, under our constitutional doctrines in the House, to give effect to the latest, inconsistent, clearly and unambiguously expressed Act of Parliament, which would say, for example, that notwithstanding the European Communities Act 1972, we would legislate in relation to immigration and asylum, thereby immediately removing all the current controversies. I should be grateful if the Minister addressed that question—[Interruption.] I shall be glad to give way to my hon. and learned Friend the Member for Harborough (Mr. Garnier) if he wants to intervene.

Mr. Garnier: I wanted to intervene and then thought better of it, but I shall now take the opportunity my hon. Friend offers me.

It seems to me that clause 105 deals exclusively with the judiciary of Northern Ireland. No doubt the right hon. Member for Upper Bann (Mr. Trimble) will help us
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further on that point. I was under the impression that justice—the appointment of judges and so forth—had been devolved to Northern Ireland and indeed may have been suspended. Again, the right hon. Gentleman may be able to help us. That is why I thought better of my intervention. My question was unformed so I thought it better not to put it, but if my hon. Friend the Member for Stone (Mr. Cash) would like to continue his remarks without concerning himself with mine, I shall take advice and either keep quiet or make another intervention in due course.

Mr. Cash: I am grateful to my hon. and learned Friend. He touches on an important point. As I said yesterday, with regard to clause 4 and devolution in Scotland, it is unequivocally the case—certainly according to the best constitutional authorities; Bradley and Ewing is a good example—that if we want to legislate in Westminster as the United Kingdom Parliament, irrespective of the passage of the Scotland Act 1998, as a matter of constitutional law, we have the right to do so. There is no doubt of that. The same applies in respect of Northern Ireland, perhaps even more so. I defer to the right hon. Member for Upper Bann (Mr. Trimble) on that point.

This is an important and serious matter, because judges, whatever their eminence and in whatever part of the United Kingdom we are talking about, are governed by the same criteria. The question of misconduct in respect of clause 105 is specifically related to Northern Ireland, but without prejudice to the fact that the United Kingdom Parliament has overriding jurisdiction. The tribunal with responsibility for considering removal, which we shall discuss later, has to go through a series of judgments, which include judgments made by persons of equal standing.

I need not elaborate further. I invite the Minister, if he would be good enough, to give us a proper definition of the words "during good behaviour" in this context. After all, if we are dealing with what the Prime Minister and the Lord Chancellor are likely to do and we then go through the motions of tribunals and the rest, it would be at least important to know that the words "good behaviour" are understood not merely in terms of criminal activity, corruption or whatever, but in relation to dealing with the fundamental question of who makes the final judicial decisions—the note on which I left the Minister last night in the final moments of our debate on the rule of law.

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