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Clause 106

Removal from listed judicial offices

Mr. Grieve: I beg to move amendment No. 351, in page 47, line 7, leave out 'except after consultation with' and insert 'without the agreement of'.
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Clause 106 deals with the mechanism of removal from listed judicial offices in Northern Ireland. Under subsection (1):

Under subsection (2):

and I have no problem with that. Under subsection (3):

The problem arises there. It is quite clear that the Bill provides that he can be removed or suspended only

I have to tell the Minister that I do not consider that to be an adequate safeguard.

Provision is made for the tribunal to make a preliminary finding and pass on the recommendation, but given that the system in England and Wales is based on an attempt to separate the mechanisms of discipline from political interference, I would have expected that the removal by the Lord Chancellor could take place only with the agreement of the Lord Chief Justice of Northern Ireland. Will the Minister explain why it was not thought right to include that point in part 5?

It is also worth considering what, in reality, the tribunal amounts to. I apologise for possibly straying into clause 107, but it is necessary to do so. As I understand the constitution of the tribunal, it would be possible for the Minister to appoint a majority of its members. Although clause 107 provides for certain individuals to serve on such a tribunal, it does not provide a ceiling limit on the numbers who do so serve. In those circumstances, there is all the more reason for the Lord Chief Justice of Northern Ireland to be involved in the decision-making process. If he believes that a judge should not be removed, I would find it inconceivable for the Lord Chancellor to go ahead nevertheless. In that case, the proper safeguard should surely be that they are both in agreement on the matter.

If it were suggested that acceptance of the amendment could lead to a conflict between the Lord Chief Justice and the Lord Chancellor, I would regard that—providing the system were working properly—as extremely far-fetched. If that did happen, we would effectively have a constitutional crisis, and in those circumstances it would be right for Parliament to know how and why the Lord Chief Justice and the Lord Chancellor had such diametrically opposite views on the subject.

I do not want speak to this amendment at great length, but I do not want the Committee to think that that suggests that I do not consider it to be very important. I do: it is of fundamental importance, and I shall divide the Committee if the Minister does not give me suitable reassurance that the matter will be considered again.I simply do not understand why the tribunal should go the Lord Chancellor, and why the Lord Chief Justice should have only a consultative role. I believe that the Lord Chancellor and the Lord Chief Justice should act together in this matter.
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Ross Cranston: I did not rise to the bait in respect of clause 107, but I do want to contribute to this debate. As the hon. Member for Stone (Mr. Cash) said, these are deep waters, but I hope that their very depth will protect me to some extent.

I want to make three points, but first I should declare an interest. I am a member of the Bar of Northern Ireland and also hold the rank of Queen's Counsel there. I have never practised in Northern Ireland and the rank that I hold is not an indication of my merit, as it followed automatically when I became Solicitor-General in 1998.

When I visited Northern Ireland as Solicitor-General, I was struck by the quality of the judiciary there. For judges, the situation was very difficult and they were under close protection all the time. The fact that the Bench was drawn from the whole community in Northern Ireland impressed me, as did the way in which the judiciary handled emergency cases. Although there was no jury in those cases, judges were both conscientious and careful.

My first point is that clause 106, and the equivalent provisions in the Justice (Northern Ireland) Act 2002, as amended, will never be invoked in practice. Only in very exceptional cases will a member of the lower judiciary in Northern Ireland be found guilty of the misbehaviour that will cause these provisions to be applied.

My second point has to do with the substantive provisions in the clause, and it is that very high barriers are in place in respect of the removal of a judge. A tribunal has to be convened and, although I do not want to stray too far into the territory covered by clause 107, the composition of that tribunal is set out in clause 107(5). That subsection provides that the exclusive membership of the tribunal must "consist of" the Lord Chief Justice or a Lord Justice of Appeal in Northern Ireland, a judge of Northern Ireland High Court, and a lay person. I think that the hon. Member for Beaconsfield (Mr. Grieve), in his earlier remarks, may have made an error in that regard.

The tribunal is therefore extremely powerful, and the first hurdle that must be negotiated is that there must be a tribunal decision.

Mr. Grieve: If the hon. and learned Gentleman is correct in his reading of clause 107, I am reassured. However, he used the word "exclusively", whereas I saw in the Bill only the word "consist". That is why I suggested that the tribunal had to consist of those members specified, but that it could also consist of other members.

Mr. Leslie indicated dissent.

Mr. Grieve: The Minister shakes his head to indicate that I am mistaken. The anxiety that I felt when I read that part of the clause is therefore allayed.

Ross Cranston: The hon. Member for Beaconsfield has done the Committee a service and the provision can now be read in terms of Pepper v. Hart—that the Bill sets out the exclusive membership of the tribunal.

The first thing that must happen is that the tribunal must be constituted. It must then conclude that there has been misbehaviour on the part of a judge, or that that
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judge is unable to perform the expected functions. Therefore, the tribunal would act in a quasi-judicial way, making that decision on the basis of facts. It would be a reasoned decision.

The third hurdle is that there must be consultation and the amendment refers to that. I am not aware of the detailed jurisprudence in Northern Ireland about what that means, but in England and other common law jurisdictions consultation means consultation. It does not mean asking and getting a reply. It means serious consultation. There are three serious hurdles in the clause.

Mr. Cash: The hon. and learned Gentleman will know that consultation, although it must be serious, means no more than that someone must listen to what is said. It does not mean that someone must do something as a result of it. Serious consultation means that someone must listen, but it goes no further than that.

Ross Cranston: No, it means that someone must listen seriously. I accept that it does not mean that someone must do as they are told; but it means that someone must listen to what their consultees have told them.

I disagree with my hon. Friend the Member for Cannock Chase (Tony Wright), one of my neighbours in the west midlands, who spoke about the logic that would lead to people who sit as recorders—as I do and as at least one Opposition Member does—being excluded from the House. On the subject of logic, if one starts from the wrong premise and follows it logically, one may end up in hell. In this country, our constitutional arrangements do not work logically; they work pragmatically and we proceed incrementally. Sometimes that means that the arrangements may be muddled or inconsistent, as in this case, between jurisdictions, but that is the nature of our constitution. I can see that, logically, the amendment might have a certain attraction, but as a matter of pragmatic incrementalism, which is what our constitution is based on, it is not appealing.

Mr. Tyler: In contrast with the hon. and learned Gentleman, I was brought up to believe that the road to hell is paved with good intentions. I suspect that that might have happened with these proposals.

This is an important amendment, and I and my colleagues share the view of the hon. Member for Beaconsfield (Mr. Grieve) that we need some assurance on the matter. It may seem narrow geographically and in terms of the total range of the Bill, but it is symbolically important. Consultation and agreement are the last-stop position in a decision-making process. Reference has already been made to the various hurdles. It is important to have a proper balance for what is clearly a safety valve to be used—as the hon. and learned Member for Dudley, North (Ross Cranston) said—in exceptional circumstances. If the House legislated only on circumstances that are not exceptional, we would lighten our legislative load considerably. The provision may cover exceptional circumstances, but it sends out an important signal. If there is to be a veto at the end of the process, we should consider carefully whether it should best be put in the hands of the appropriate Lord Chief Justice rather than a Minister of the Crown.
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I pray in aid my right hon. Friend the Member for Berwick-upon-Tweed (Mr. Beith), the Chairman of the Constitutional Affairs Committee, and I am delighted that he is in his place. The Committee said:

That should apply to the whole United Kingdom and should include Northern Ireland, as well as other parts. I hope that the hon. and learned Gentleman is about to persuade me otherwise, but I suspect not.

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