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Ross Cranston: I simply point out that the Lord Chief Justice is one of four members of the tribunal and, obviously, a persuasive voice in the proceedings of that tribunal.
Mr. Tyler: I am delighted to hear that. I, too, am very persuasive, but I suspect that in a few moments that will not necessarily result in the conclusion of the debate going in my favour. Persuasion is not enough—[Interruption.] The Minister thinks that I may be persuaded. I am delighted about that.
The measure gives a rather important signal: who is to have the last word? That is significant in all parts of the United Kingdom. The relationship of the Executive to the judiciary is at the heart of the legislation and, as the Minister knows, we have great sympathy with the bulk of the Bill, but it is more than a symbol. There is significance in this point and we would err on the side of judicial independence.
Earlier, the hon. Member for Stone (Mr. Cash) was lecturing us about the glorious revolution of 1688. I, too, studied that period, and although I was never a lawyer and aspire to no legal expertise, I believe that that change, from the king's pleasure to the way in which we now operate in this kingdom, is extremely important, because if we were directly to translate the king's pleasure of the pre-1688 disposition to the present day it would be the Executive's pleasure—the Government's pleasure—that would be the deciding factor as to whether somebody remained in post. That is not a satisfactory position.
I hope that the Minister will be able to give us the reassurances that have already been sought on the issue. It is more than symbolic, and it is extremely significant that we should get it right.
Mr. Trimble:
I listened with great interest to the contribution of the hon. and learned Member for Dudley, North (Ross Cranston), although I am not sure that his intervention during the last speech was entirely accurate. He may want to look at that provision again. What particularly interested me in his original contribution was his comment that we worked pragmatically rather than simply following logic wherever it might lead. That struck me as a reworking of the famous dictum of Oliver Wendell Holmes, and I endorse it entirely. It is of course part of the reason why I do not like the whole Bill. The whole Bill stems from a rather jejune attitude to the separation of powers, rather than respecting the way in which our traditions have actually evolved, but that is a broader matter.
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I agree entirely with the comments of the hon. Member for Beaconsfield (Mr. Grieve) and would like to add to them that examining the legislative history of the provision that is now clause 106 (5) would be worth while. One turns to the Justice (Northern Ireland) Act 2002, where the equivalent provision is section 7(5), which, as enacted, reads that a person holding a listed judicial office
The Act was clear that it had to be the agreement of the Lord Chief Justice, rather than consultation. The lowering of the procedural hurdle occurred in the Justice (Northern Ireland) Act 2004, on whose Bill Committee I had, unfortunately, to sit—but that is another matter. The phrase "without the agreement of" was deleted from clause 5 and the phrase "except after consultation with" was inserted.
We disapproved heartily of the 2004 Act. We did not consider that the change was made on its merits; it was made simply because it was one of a number of items on the Social Democratic and Labour party shopping list. The SDLP wanted to prove that it was more effective than Sinn Fein and that it could bully the Government into making changes in the law to suit the SDLP rather than the changes the Government considered appropriate or advisable. For their own reasons, the Government decided to give way to that pressure and amended that Bill.
As I said previously, the 2002 Act is not in force and will not be in force even if devolution is resumed in Northern Ireland. The Act will come into force only after resumption and a subsequent decision by the Northern Ireland Assembly on a cross-community vote to agree to the devolution of justice and policing matters, which as I said to the Minister, is not going to happen. It will not happen because my party will not agree to it, and I believe that the Democratic Unionist party would adopt the same position. It will require considerable changes that do not seem likely to happen before we would agree to the devolution of policing and justice matters.
This is not a temporary arrangement that will operate in six months or a year, when policing and justice matters are devolved. This is something for some way in the future, so why it has been brought into the present? It is not a matter of any agreement between the parties—there never was any agreement between them before the 2004 Act or the 2002 Act—and it is not in any way part of any settlement. Crucially, when the Government first looked at the issue, they decided—their decision is embodied in the 2002 Act—that these procedures should operate only with the agreement of the Lord Chief Justice, which is more than just consultation.
On this matter, the Government's first thoughts, which were their own thoughts, were better than what they decided to do as part of a squalid political deal with the SDLP at a later date. For that reason, I urge the Government to accept the amendment moved by the hon. Member for Beaconsfield. At the very least, they should go back and take a good, hard look at the issue and explain to us why they have introduced these provisions, which will not go live in Northern Ireland—at least the rest of the 2002 Act provisions will not go live—and the Minister will need to assure us that there
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is a reason for introducing them and that no untoward political influence of the sort that resulted in the 2004 Act is behind them.
Mr. Garnier: The right hon. Member for Upper Bann (Mr. Trimble) has, not for the first time, alighted on some serious points and, by explaining the history of the Northern Ireland legislation, exposed the Government's paucity of thinking when they came to construct clause 106, and the amendment is a further means by which we can expose the inadequate thinking that lies behind the Bill.
The hon. and learned Member for Dudley, North (Ross Cranston) sought to persuade us that the way in which the Bill was drafted and constructed had a pragmatic basis, but we know very well that the entire volume is an ex post facto justification for the Prime Minister's decision to remove Lord Irvine. We have had all those arguments, but the Bill is the result of two years' thinking about how to undo or make politically and constitutionally acceptable that act of political assassination. We are having to wade through the consequences of that in Committee, and it is a pity, first, that we do not have enough time to do so properly, and secondly, that the Minister, at least judging by our previous discussion, is not entirely briefed on the subject.
Mr. Leslie: Perhaps the hon. and learned Gentleman could help the Committee by getting to the point.
Mr. Garnier: I think that these late nights are getting to the young man, but I shall continue.
The amendment is perfectly sensible. Surely, if the Government are as keen as they tell us they are to ensure the separation between the Executive, Parliament and the judiciary, it must be perfectly proper for the Lord Chief Justice to be required to agree with any disciplinary activities that the Bill intends. If the separation of powers is to be a properly respected concept, the senior judge in Northern Ireland must agree to the removal or suspension of a judge in Northern Ireland. After all, that is only the reverse of the picture that the Government wish to paint in this jurisdiction. Clause 94(2)—we will consider the clause in greater detail in due course—says that the Lord Chief Justice of England and Wales
If there is to be agreement one way, why should there not be agreement the other way in the other jurisdiction?
That is a minor matter compared with the question of removal. The Lord Chief Justice must get the agreement of the Minister—the Lord Chancellor, as we now know he will be called—if he wants to give advice, a warning or a formal reprimand to a judge in this jurisdiction. However, the Lord Chief Justice of Northern Ireland cannot do any of those things because only the Lord Chancellor can do that, after merely consulting the Lord Chief Justice of Northern Ireland.
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5.30 pm
Clause 94(5) states that the Lord Chief Justice may suspend an English judge for any period if
"the person has been convicted of a criminal offence, . . . it has been determined under prescribed procedures that the person should not be removed from office, and . . . it appears to the Lord Chief Justice with the agreement of the Minister that the suspension is necessary for maintaining confidence in the judiciary."
What is good for one jurisdiction should be good for the other.
I was not impressed by the attractively put argument of the hon. and learned Member for Dudley, North that this is a funny old world and we have a funny old constitution, so we tinker about with it in a funny old way. The Government are knocking the constitution to bits on the back of an envelope. When we get to a Bill, we should at least do things properly.
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