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Mr. Cash: My hon. and learned Friend referred to several anomalies, and I am rather pleased about the extremely small alliance of Opposition Members that has built up. These matters are important and have been cobbled together in the Bill. They are not being treated as seriously as they should on behalf of the people of this country, and especially those in Northern Ireland, who will suffer their consequences in due course.

The hon. and learned Member for Dudley, North (Ross Cranston) is a fairly near neighbour of mine. He said that we should not get too worried about most of this stuff because the measures are unlikely to be used in practice. He then said that they would be used in exceptional cases, at which point one might have reasonably drawn a sharp intake of breath. We would assume that the measures would deal with only exceptional cases, but part 5 of the Bill and the accumulated legislation that lies behind it are devoted to doing just that. It is exceptional for such things to go wrong, but it is important to handle exceptional cases correctly, so I am glad that the amendment is giving us the opportunity to examine the provision.

Clause 106(5) states that a judge may not be removed or suspended

We would like the words "without the agreement of" substituted for the phrase "except after consultation with". However, I ask, "Without the agreement of the Lord Chief Justice about what?" Subsection (3) gives us a clue. I am grateful to the right hon. Member for Upper Bann (Mr. Trimble) for having schedule 1 to the Justice (Northern Ireland) Act 2002—the relevant legislation—immediately available, because I did not have it to hand. It is headed "listed judicial offices" and details all those who fall into the category. I hazard a guess that few hon. Members have had the opportunity to examine it today. The list starts with a judge of the High Court and continues down through county court judges to a range of other persons, many of whom hold an office that might be described as fairly low but is not low at all, because it is of immediate and great importance to the average person in Northern Ireland: such offices include the chairmen of a range of tribunals. The list is extremely
 
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long and therefore permeates the whole of Northern Ireland society. When I read that the tribunal will recommend in its report that a person

I feel bound to draw attention to one or two points about the grounds for removal and what sort of recommendations will be made.

Under new section 12B(1) of the Judicature (Northern Ireland) Act 1978, the Lord Chief Justice and Lord Justices of Appeal hold office "during good behaviour". Although I do not think that we need to be pedantic, it is interesting to note that, under clause 106(3)(b), the recommendation that will lead to removal from office is based

Immediately, therefore, we see a distinction: good behaviour is set forth as the rule, but at the point of removal, the question has become whether there is misbehaviour.

Perhaps there is a simple explanation. We can be confident that the draftsman knows what he is doing and that, as my hon. and learned Friend the Member for Harborough (Mr. Garnier) pointed out, the Government do nothing without a good reason, so it would be incredibly stupid of us to imagine that they do not have a good reason based on an assessment of the precise meaning of the wording. I go further and say that parliamentary counsel can certainly tell the difference between "good behaviour" on the one hand, and "misbehaviour" on the other.

Mr. John Taylor (Solihull) (Con): I am following my hon. Friend's argument as carefully as I can. Is he suggesting that there is a twilight zone of behaviour that falls short of good behaviour, but has not yet become as debased as misbehaviour? If so, what would he call it?

Mr. Cash: That is an important point. Perhaps he was fortunate, but my hon. Friend did not hear the debate on the previous clause, when I raised the question of what misconduct involves. Those are questions that will be decided by the tribunal. There is indeed a twilight zone, and it may well emerge in the exceptional circumstances to which the hon. and learned Member for Dudley, North referred. That will be the only basis on which such matters are decided. The more unique the circumstances, the more important it is that we get the provisions right. I am puzzled by the discrepancy between the expressions used—"good behaviour" and "misbehaviour"—and I would like an explanation.

Hon. Members might recall that in the previous debate I referred to Scotland, where there is a different historic tenure to that which applies in the rest of the United Kingdom, including Northern Ireland. In Scotland, the historic tenure is ad vitam aut culpam—judges cannot be removed except on the grounds of misconduct. However, inferior judges in the list of judicial offices in the United Kingdom, including Northern Ireland, receive lesser protection. The legal position is that circuit and district judges can be removed from office by the Lord Chancellor, if he thinks fit, for incapacity or misbehaviour. I am certain that parliamentary counsel and the Minister will realise that that is another deliberate change to the existing arrangements, and I should like to know why.
 
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With respect to the question of tribunals in Scotland, the removal of judges, if the First Minister is involved under devolution arrangements which, as I have already said—

The Chairman of Ways and Means (Sir Alan Haselhurst): Order. I am sure that the Committee is always pleased to hear from the hon. Gentleman. I am not sure, however, that he should speak in quite such a dilated manner about the amendment, which is very particular. A certain amount of comparative evidence may be raised, but I suspect that we have reached the boundaries, as this is a narrow amendment relative to the persons mentioned in the Bill.

Mr. Cash: I entirely understand that point, Sir Alan. The framework of the clause, however, allows an interaction with the questions of criteria. According to a legal text, a judge from the Court of Session could be investigated if he were unfit for office

In relation to the question of what he is being removed or suspended for under clause 106(3)—

The Chairman: Order. That is not the question. The question is about the role of the Lord Chief Justice in this matter, not the reason why a decision, agreement or consultation may be called for.

Mr. Cash: I understand your point, Sir Alan.

The Chairman: I hope that the hon. Gentleman will do more than understand it. I hope that he will follow it.

Mr. Cash: I will indeed, Sir Alan. If the amendment were accepted, a judge could not be removed or suspended without with the agreement of the Lord Chief Justice. In its existing form, clause 106(5) says that he cannot

It would defy my understanding of the rules of debate if I were not allowed to argue that the question of removal or suspension should include reference to clause 106(3). In conclusion, the words "neglect of duty" have been omitted from that subsection, although the draftsman included the words

That mirrors precisely the Scottish provision. The omission of "neglect of duty" must therefore be deliberate, and I should be grateful if the Minister would explain why.

5.45 pm

Mr. Leslie: Clause 106 provides the Lord Chancellor with the power to remove from office a member of the judiciary in Northern Ireland below High Court judge level in the period prior to devolution of justice to the Northern Ireland Assembly. Removal is possible only for reasons of misbehaviour or inability, and can take place only on the basis of a recommendation from a tribunal convened under clause 107 and following consultation with the Lord Chief Justice of Northern Ireland. The clause takes into account the arrangements
 
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under the Justice (Northern Ireland) Act 2002, as amended by the Justice (Northern Ireland) Act 2004, for the removal of a member of the judiciary after devolution of justice functions. Under the 2002 Act as amended in 2004, the Lord Chief Justice is not required to consent to removal.

The provisions in Northern Ireland in relation to the post-devolution removal of a member of the judiciary reflect the recommendations of the Northern Ireland criminal justice review report. That report, which arose out of the Belfast agreement, was tailored to Northern Ireland's circumstances and was subject to wide consultation and acceptance by the Government. The report did not recommend that the Lord Chief Justice must consent to the removal of a judge. That means that Northern Ireland will be different from England and Wales. That is what devolution is about. It does not mean, though, that we are less committed to the central principles of independence, fairness and transparency. There can be different ways to achieve different aims.

Amendment No. 351 is not necessary. Each UK jurisdiction will find its own way towards independence, fairness and transparency for its judiciary, in the most appropriate way and in accordance with the needs and circumstances of its own jurisdiction. The process that I outlined happens to be the right way forward for Northern Ireland.


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