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Mr. Garnier: Under the next clause we may be able to discuss further the points that my hon. Friend was making. I am concerned that a limited part of the Executivethe Prime Ministerwill keep to himself the ability to present a motion for the removal of a judge. In so doing, he will, at the very least, inconvenienceI use that word in an old-fashioned senseWestminster Members of Parliament from Northern Ireland of both sides of the traditional divide who may wish to express an opinion about the conduct of a particular judge. He may want to do that, as my hon. Friend the Member for Beaconsfield (Mr. Grieve) said, for overriding political reasons, because it is convenient to move the peace process on in a particular way at a particular time. It is not right, however, that we should allow the appointment and removal of judges to be a creature of some other political game.
Mr. Tyler: Does the hon. and learned Gentleman accept that, under clause 105(4), the critical issue is surely not what action is taken by whom but what the tribunal itself has determined? Therefore, his comments on this clause, I hesitantly suggest to such an experienced Member, are more appropriate to the next clause.
The hon. Gentleman has been correctly rebuked by you, Mrs. Heal, but on the other hand he illustrates the difficulty that, under our artificial procedures, we are allowed only to debate things in
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slices. The Bill needs to be considered as a whole. We may be able to have a fascinating conversation about the matter on Third Reading, but by then, of course, it will be too late.
Mr. Garnier: Exactly. That is the point. It is a matter of considerable concern to me that we are allowing the Executive to take on such additional powers. That having been said, I think that the hon. Member for North Cornwall (Mr. Tyler) wants to make his contribution.
Mr. Tyler: I only want to intervene briefly to say that the obverse could apply. If the tribunal has made that recommendation, it would be a peculiar decision by any member of the Executive, whether Prime Minister or Lord Chancellor, to go against the advice. That is properly a matter for a subsequent clause, however.
Mr. Garnier: The right hon. Gentleman is right: peculiar Prime Ministers make sensible decisions from time to time, but peculiar Prime Ministers occasionally make peculiar decisions, and we are the victims of them.
Mr. Leslie: Part 5 of the Bill provides for the removal of judges in Northern Ireland in the period prior to devolution of justice to the Northern Ireland Assembly. Clause 105 inserts a new section 12B into the Judicature (Northern Ireland) Act 1978, to provide for the removal of judges from the most senior judicial offices in Northern Ireland. As at present, the Lord Chief Justice, Lord Justices of Appeal and High Court judges may be removed by the Queen on an address by both Houses of Parliament.
Then we come to the point that has raised the interest of the hon. Member for Beaconsfield (Mr. Grieve), namely, a motion for an address may be made to the House of Commons by the Prime Minister and to the House of Lords by the Lord Chancelloror, under the earlier amendments, if the Lord Chancellor is not a Member of that House, by another Minister of the Crown at his request. In responding to the hon. Gentleman's inquiry, I confirmed that while for England and Wales any Member of Parliament can
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make the motion on the removal of judiciary, in Northern Ireland that is not a feature of the settlement arrangements in that jurisdiction.
The hon. Gentleman worries that that will in some way fetter the freedoms and discretions of Members of Parliament in moving motions in Parliament. Let me respond to that. In the case of a statutory requirement such as this, an address could not have legal effect. If it was not proposed by the Prime Minister and/or the Lord Chancellor, Her Majesty could not act upon it. Such statutory provisions are not unusual. For instance, some financial motionsthe Whips will know of themcan be moved only by Ministers in this House. Her Majesty's placing of her prerogative at the disposal of the House sometimes requires an indication from a Privy Councillor that consent is signified. On some occasions, particular types of motion require different hon. Members, in their different roles, to make their views known. In this case, I accept that the position is not in line with the England and Wales arrangements, but there is a particular reason for that.
Mr. Grieve: That is precisely the questionI do not wholly understand what the reason is. As I infer it, it is this: the Government, on the basis of the history of this matter and their intention to move towards devolved structures, simply reproduced in clause 105 the system that would have applied when the devolved structures were in operation, even though they are not.That is not an adequate reason. For the moment, as we continue to carry the can for the discharge of judicial functions in Northern Ireland, it is unnecessary to remove the power of a Member of this House or the other place to move the motion. The Minister should ensure that that right is here; at least then, when the time comes to set up the devolved structures, it would be understandable for him to come to the House to say that it has to be given up. If he wants to convince me that he is right, his explanation must centre on explaining why we cannot have that right in the interim.
Mr. Leslie: I disagree with the hon. Gentleman. This issue was debated at length during the passage of the Justice (Northern Ireland) Act 2002. There are reasons for the differences between the arrangements for England and Wales and for Northern Ireland. A particular feature of the settlement that followed the changes made in the Belfast agreement is that there were, and are, differences in the devolution arrangements, as even the hon. Gentleman accepts. I understand his point, but that is not the proposal that we are making.
I think that the Minister is, uncharacteristically, in error. What we are discussing is in no way related to the current suspension of the Northern Ireland Assembly. If it resumed tomorrow, the provisions in the 2002 Act would not apply. They are not part of the settlement to which the Minister refers, but they are part of an entirely separate arrangement about the possible future devolution of justice and policing matters to the Northern Ireland Assembly. That will not happen without the agreement of both sides of the community in Northern Ireland, and at present there is absolutely no prospect of that happening in the foreseeable future. We have turned our
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face very firmly against it. In that situation, to introduce measures that would come into effect only in the distant future is a retrograde step, and to pass this off as following on from the 1998 agreement is not right.
Mr. Leslie: I am reluctant to reopen the debate that took place not only on the 2002 Act, but in advance of that through the Belfast agreement. The right hon. Gentleman has his particular view and I respect that. However, the arrangements are not unduly constraining on a decision of this House or of the other place in making its views known about the judiciary and the removal of members from it.
Mrs. Gwyneth Dunwoody (Crewe and Nantwich) (Lab): I am concerned that we may be giving away a genuine power in exchange for nothing. Will my hon. Friend the Under-Secretary simply tell us whether the right hon. Member for Upper Bann (Mr. Trimble) is correct? He sayshe spelled out the precise reasonsthat the effect that the Under-Secretary outlined is incorrect. Is he right?
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