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Mr. Trimble: I repeat to the Minister the point that I made on the earlier set of amendments. It is not sufficient simply to pray in aid the 2002 Act. The Act is not in operation, and we are dealing here with legislation that will operate only until the 2002 Act comes into force, whereupon the provisions of the Bill will fall. Why, when the 2002 Act does not apply, has a policy decision been made to bring forward into the current regime provisions which, under the law as I understand it, will come into operation only at some dim and distant point in the future when the 2002 Act comes into operation, if it ever does?
Mr. Leslie: The reason we are introducing the proposals at this stage is that we are discussing the reform of the office of Lord Chancellor. The proposals are needed in order to bolster judicial independence in all jurisdictions in which the office of Lord Chancellor changes. We know that if the arrangements were not changed, as at present, the Lord Chancellor could act unilaterally for lesser judges, and for High Court judges or above with an address to Parliament. There would be no tribunal requirement. This is our way of ensuring that we are bolstering the independence of the judiciary in the jurisdiction of Northern Ireland, making it consistent with the 2002 Act, as amended in 2004.
Mr. Oliver Heald (North-East Hertfordshire) (Con):
Does the Minister agree that the decision to remove under clause 106 would be justiciable, in the sense that it would be subject to judicial review if it was made in an arbitrary or unreasonable way? Can he think of any circumstances in which it would not be arbitrary or unreasonable if, having been consulted, the Lord Chief
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Justice said, "No, this shouldn't happen", and in the teeth of that opposition, the Lord Chancellor went ahead and did it?
Mr. Leslie: All these matters are justiciable and could be subject to requirements for reasonableness, but I will not discuss hypothetical situations and what is or is not reasonable. That will be for the courts to test, and there is plenty of case law, the Wednesbury principles and so on, to which we can return. The provisions in the clause, which the amendment would change, are the right way for Northern Ireland to give extra protection to bolster judicial independence. I shall explain why I believe that.
The removals tribunal that we will set up in Northern Ireland, which is not being replicated in England and Wales, is different and adds extra layers of protection for judicial independence—for instance, the fact that the judicial members of the removals tribunal are appointed by the Lord Chief Justice of Northern Ireland, who is capable of appointing himself to that tribunal. The tribunal could be chaired by the Lord Chief Justice of Northern Ireland, if so desired, and he would be involved throughout the tribunal process. That is not the arrangement for England and Wales.
We have consultation instead of concurrence with the Lord Chief Justice, as we would have in England and Wales. We do not need that in Northern Ireland because the Lord Chief Justice of Northern Ireland would have had his bite of the cherry earlier through the removals tribunal process, which is stronger than we have arranged for England and Wales. They are different jurisdictions, they follow different paths, and that is the nature of the split in jurisdictions between those points, and of devolution.
Mr. Trimble: The Minister has said that part of the justification is that the Lord Chief Justice had a bite at the issue at an earlier stage. That is true of a tribunal under clause 107(5),
which gives the Lord Chief Justice a chance of being there, not a certainty. Under clause 107(4), however, a tribunal
"to consider the removal of the Lord Chief Justice, a Lord Justice of Appeal or a judge of the High Court is to consist of . . . a person who holds high judicial office . . . and does not hold (and has never held) the office of Lord Chief Justice, Lord Justice of Appeal or judge of the High Court".
Therefore, the Lord Chief Justice possibly comes in under subsection (5), but certainly does not do so under subsection (4).
Mr. Leslie:
The provisions mirror arrangements that were debated at length in relation to the 2004 Act and, before that, the 2002 Act. We are introducing them at this stage because they give that extra measure of protection to bolster independence of the judiciary. Were we not to do that at this stage, and were we to
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change the office of Lord Chancellor, we would not have the programme for removals in place to give that protection to judicial independence.
Mr. Cash: There is another question of protection—the protection of people in Northern Ireland in this context or elsewhere. We are dealing with the question of whether there has been some misfeasance—I use that word because of the confusion that has been created by the wording that the Minister has chosen. Why are the words "neglect of duty" not also included in subsection (3)? Can he clarify what is the difference between good behaviour and misbehaviour? If he cannot do that now, will he please be good enough to write to me?
Mr. Leslie: Those parts of the clause mirror provisions in other Justice Acts: in this case, the Justice (Northern Ireland) Act 2002, as amended by the Justice (Northern Ireland) Act 2004. I hear the hon. Gentleman's point and your strictures, Sir Alan, not to widen the debate too far from the amendment. On the difference between good behaviour and misbehaviour, however, I am not sure that there is the hidden middle ground between those points that he seems to suggest. The current law is that judges hold office during good behaviour, and if they are guilty of misbehaviour, they can be removed. That reflects that misbehaviour is of course the opposite of good behaviour. It is as straightforward as that.
I hope that I have explained to the Committee why we feel that it is right to bolster judicial independence in Northern Ireland in this particular way, with the removals tribunal and the involvement of the Lord Chief Justice of Northern Ireland. Yes, it is different from the arrangements in England and Wales, but that is for good, historic reasons. It suits the situation amply and provides an extra level of protection, enhancing the protection of judicial independence.
Mr. Heald: On the good behaviour point, subsection (3) refers not just to "misbehaviour" but to
Does not the absence of good behaviour include incapability as well as misbehaviour?
Mr. Leslie: I do not want to get into the definition of misbehaviour, further to my previous comments. We might be able to correspond about the matter, and I know that the hon. Gentleman enjoys correspondence. I will probably engage in a long series of written representations with him on that point.
I hope that I have explained why we do not feel that amendment No. 351 is legitimate at this point, and we hope that in due course the Committee will support clauses 106 and 107.
Mr. Grieve:
I very much regret the approach that the Minister has taken on this. Faced with a major piece of constitutional legislation that provides for reform of the role of the Lord Chancellor, the Minister and the Government have been obliged to place in one statute, in stark juxtaposition, different structures for different parts of the United Kingdom. The Minister is forced to stand up and say rather limply to the Committee, "We have got to preserve this, because it is what has been
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deemed appropriate for the people of Northern Ireland in past legislation that we have enacted." However, the problem that he shies away from tackling is that all that past legislation was introduced with the intention that it would operate under a devolved structure that will now not happen for the foreseeable future. For this House then to abdicate its responsibility and leave the people of Northern Ireland with a vastly inferior system of scrutinising the activities of the judiciary through Parliament is extremely unhelpful and wrong.
Mr. Garnier: My hon. Friend is being too generous. Before the right hon. Member for Upper Bann made his first intervention on the Minister, the Minister said that this happens to be the best system for Northern Ireland, as though it had emerged out of the ether. Nothing in the Bill is there except by design, so either the Government have thought about it and got it wrong, or they have not thought about it and stuck it in regardless.
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