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Mr. Trimble: I rise to comment briefly on the clause in the hope that the Minister will explain the scheme of things. Having only glanced at the legislation, my understanding is that the provisions of clauses 105 to 107, which apply to removal from senior judicial offices in Northern Ireland, will take effect until such time as the Justice (Northern Ireland) Act 2002 comes into operation, whereupon they will be replaced by the provisions of sections 6 to 8 of that Act. I think that that is what is intended.
Mr. Trimble: I see the Minister nod, which is rather disappointing for me, because when I first read the clauses, I thought to myself, "Oh, goody—they've written the First Minister and the Deputy First Minister out of the process." Under the 2002 Act, the First Minister and the Deputy First Minister have a significant role, but it is a role with which I was never comfortable, which is one of the reasons why I opposed the relevant provisions of the 2002 Act and the Justice (Northern Ireland) Act 2004.
The provisions on the appointment and removal of judges will be bad in practice. They open the door to far too much political influence on the process. The present system, although superficially it appears to involve politicians in the administration of justice, works well in fact, whereas the Government's proposals, which are allegedly designed to remove the appearance of political interference, will in fact result in greater
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political interference. That might not be the intention. Although the intentions behind the legislation may be good, I think that the consequences in almost every case will be a deterioration in the quality of the system.
I rose simply to make sure that my understanding of the legislation is correct. I am sorry to find that it is and that my hope that the First Minister will no longer be involved is to be dashed.
Mr. Grieve: I am sorry to return to an issue that I raised during debate on amendments to the clause, but until our debate started, I had not picked up on it, and nor, I suspect, had the Minister. When I asked him whether the clause would fetter the right of a Member of either House to move a motion for the removal of a judge, he initially nodded assent, but was then handed a note from the Box saying that that was indeed the position for England and Wales, but not for Northern Ireland. That makes me anxious. I fully appreciate that there is a devolution settlement in Northern Ireland. When it is introduced—and I am mindful of the views of the right hon. Member for Upper Bann (Mr. Trimble) and his criticism of the arrangements—it is intended, for better or for worse, to work as an interim arrangement. As the Minister knows, interim arrangements in Northern Ireland can last a long time.
Mr. Trimble: The substance of the interim arrangement that the hon. Gentleman does not like is part of the 2002 Act. By criticising that arrangement he is also criticising the arrangement in that Act, and I am wholly with him on that point.
Mr. Grieve: I am grateful to the right hon. Gentleman. I remember the 2002 Act, having played a part in its passage through the House. I remember discussing those issues at that time and expressing concern. Indeed, I think that I did so on that very point, but my mind is not completely clear about every detail of a Bill that we discussed two years ago. In the meantime, a devolution system is not in operation, so the Parliament of the United Kingdom keeps special responsibilities in respect of the Northern Ireland judiciary. In those circumstances, it is strange that the only way in which a Lord Chief Justice, Lord Justice of Appeal or judge of the higher court can be removed is by passing a resolution of both Houses in the usual way but that the only two people who can move the motion are the Prime Minister and, in the other place, the Lord Chancellor or his nominated substitute.
Let us consider an example. A judge behaves controversially in Northern Ireland and his conduct is called into question. A decision is made to remove him, following a report by a tribunal, but for reasons of political expediency, the Prime Minister decides that it would not be appropriate to do so. Under the present arrangements, it would be impossible for a Member of either House to move a motion to remove that judge. I am happy to acknowledge that the chance of such a circumstance arising is fairly remote, but we are abdicating our responsibility as a Parliament and as a House by surrendering our right to move a motion, while we still have responsibility for the matter, to the Prime Minister and the Lord Chancellor or his nominated substitute.
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When the devolution arrangements come in, because they allow greater autonomy for the Northern Ireland Executive, it could be argued that the Prime Minister is required to provide ratification of a procedure that remains with Northern Ireland for the most part. In those circumstances, there is a different argument about whether other Members of Parliament should get involved. In the interim—I suspect from the way in which the Minister presented the case, that this is unintentional—we are surrendering a responsibility that we ought to keep.
Mr. Cash: My hon. Friend is making an interesting point. With reference to the good tome that I have brought with me, motions can usually be moved by any Member of the House, so allowing only the Prime Minister to do so is a significant shift. That consolidates the point that my hon. and learned Friend the Member for Harborough (Mr. Garnier), other Members and I have repeatedly made. These are deep waters. Furthermore, I touch on the fact that in Scotland judges hold office ad vitam aut culpam, meaning that they cannot be removed except on the ground of misconduct. But the tribunal describes the position as unfitness for office
so the deeper we go into the subject, the more problems are thrown up. The Prime Minister might easily take an entirely different view from a Member of the House.
Mr. Grieve: I agree with my hon. Friend. Pending devolution, responsibility lies squarely with Parliament and the Government. As the maintenance of a sound judiciary is very much one of our parliamentary responsibilities, I am coming to the conclusion—it was not my position when we started debating the clause; it had never occurred to me—that unless the Minister gives me an assurance that he will revisit the matter and table necessary amendments if required, I shall invite the House to divide on clause stand part. The House should not abdicate to the Prime Minister, the Lord Chancellor or anybody else its central responsibility, if it considers that a judge within its area of jurisdiction is misbehaving, to move a motion for his removal.
I hope the Minister will respond positively. The matter has arisen in the course of debate, but it is more than academic.
4.30 pm
Mr. Garnier: I am encouraged by my hon. Friend. I have not found all the amendments tabled by him and my hon. Friend the Member for Huntingdon (Mr. Djanogly) wholly agreeable, but most have been interesting. On this occasion, we are opening up an interesting area of constitutional crisis.
The Government have made many mistakes, but they never do anything by mistake. Here we are witnessing the sucking of power from the Chamber to the Executive. We all know that the Executive not only sit in, but sit on the Chamber. When Ministers say, "This is a matter for Parliament" or "This is a matter for the House", of course they mean nothing of the sort. What they mean is, "We, the Government, have made a
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decision and our obedient Back Benchers will troop through the Lobby, as directed by us and the Chief Whip."
Nobody is under any misapprehension about that. I know the rules of the parliamentary game as well as the Minister does. However, we ought occasionally to remind ourselves that it is a charade, and that when the Minister prays in aid the votes of Parliament, he is merely exercising his power as a member of the Executive to control the House of Commons. I find it extremely worrying. I appreciate that it may be for only a short time in interim legislation, but it is worrying that a Prime Minister or a Government could arrogate to themselves exclusively the ability to do what Members of the House have traditionally been able to do, certainly since 1688.
Mr. Cash: Would my hon. and learned Friend also go along this path? The situation in Scotland, because of the different definition of the basis of misconduct, which I gave earlier, is different from that in England and Wales and in Northern Ireland, where there is a similar definition of good behaviour. Taking the responsibility away from the House of Commons and giving it to the Prime Minister raises some extremely tricky questions, which include the question of the tribunal and the basis on which it would arrive at its decision. The Prime Minister—
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