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Dr. Alasdair McDonnell (Belfast, South) (SDLP): We are opposed to clause 2, and schedules 2, 3, 4, 5 and 6, standing part of the Bill. In our view, all those provisions deal with the role of the First Minister and the Deputy First Minister in judicial appointments. I wish to make it clear that although the SDLP has never advocated
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political interference in judicial appointments, we feel it appropriate that there should be some democratic input from the First Minister and the Deputy First Minister.

We have endorsed what is in the criminal justice review, which emerged from the original Belfast, or Good Friday, agreement—namely, a limited political role for the First Minister and the Deputy First Minister. This involved the Judicial Appointments Commission taking the lead role for all appointments below High Court level, but with the First Minister and the Deputy First Minister having the power to require the JAC to reconsider—once only, I hasten to add—in respect of any vacancy and perhaps come up with an alternative or further recommendation. The criminal justice review gave the First Minister and the Deputy First Minister a more limited role still in the senior appointments—the High Court appointments—but we feel that that struck an appropriate balance in order to provide some democratic or political input without necessarily creating political interference. Clause 2 and schedules 2 to 6 end any sort of democratic input in judicial appointments, and that means that we will not have devolution of the responsibility for judicial appointments. Let us be clear that nothing in schedule 6 means that the useful existing arrangements can be, or will be, revived.

Similarly, the criminal justice review provided for the First Minister and the Deputy First Minister to be given a limited role in the removal of a judge, should that ever become necessary for whatever reason. Under the current arrangements, they could manage to trigger a tribunal to consider a difficulty associated with a less senior judge who was appointed, but they could not directly remove an individual judge. Again, the opportunity to trigger has disappeared. Although the criminal justice review was implemented by the Justice (Northern Ireland) Act 2002 and was extended in the Justice (Northern Ireland) Act 2004, all this appears to be gone. I presume—I do not know—that this has been done somehow or other with the agreement of the First Minister and the Deputy First Minister, and their respective parties. I, like my SDLP colleagues, believe that this is the wrong way to go. We believe that the criminal justice review struck the right balance, and I believe that is why this House legislated for that balance in 2002 and 2004. Does the Secretary of State really now believe that the balance struck by those Acts and passed by this House got it wrong somewhere or other? I suggest that clause 2 should not stand part of the Bill.

Mr. Dodds: I shall make a small contribution to this clause stand part debate. It was interesting that the hon. Member for Belfast, South (Dr. McDonnell) advanced the argument that it is wrong to remove certain powers from the Office of the First Minister and Deputy First Minister, although these powers are limited in relation to the appointment and removal of judges. I say that because time and again we have heard members of his party, and perhaps him too, rail against what they describe as power grabs by the First Minister and the Deputy First Minister, and the office that they hold. All sorts of arguments have been advanced in the Assembly, and outside it, about how my right hon. Friend the Member for Belfast, East (Mr. Robinson) and others are out to take ever more powers to the centre and so on, yet here we are, in a situation in which they have agreed to divest themselves of certain responsibilities on the basis of removing any hint—

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Dr. McDonnell rose—

Mr. Dodds: I shall give way.

Dr. McDonnell: Could the hon. Gentleman perhaps distinguish between short-term abuse or mismanagement by the current office holders and the point that I am trying to make, which is the important and all-embracing nature of this issue? This is about the long-term and about what happens whoever the office holders may be. The fact that the current office holders perhaps do not behave in the most appropriate way is no argument for not doing the thing right.

Mr. Dodds: I am not sure that that intervention really clarifies things or helps to advance the case that the hon. Gentleman made. Indeed, the recent Financial Assistance (Northern Ireland) Act 2009 was a long-term solution to a pressing problem to do with a gap in the powers of the First Minister and the Deputy First Minister, and it was bitterly opposed by the hon. Gentleman and his colleagues even though it will provide hardship relief to many vulnerable people in our communities across the board.

The appointment of senior judges in Northern Ireland is a sensitive and important issue—as is the whole issue of justice and policing devolution, which is why we need to scrutinise it carefully with sufficient time to do so. I agree with others who have said that they are disappointed about the lack of time for proper scrutiny. It is strange that the hon. Gentleman should take the position that he has. I would have thought that most people in Northern Ireland were somewhat reassured by the fact that there should be no suggestion of political interference in the appointment of High Court judges, given the role that they play. The hon. Gentleman talked about a democratic input, but people are concerned that political interference might be brought to bear on such appointments. I have to point out that for positions much less sensitive and important than that of High Court judge, his party has been careful to point out how politicians should be removed from the process of both appointment and removal. I fail to understand the hon. Gentleman’s approach in this case.

My party believes that this process is an advance and will provide reassurance. It helps with confidence building, and people across the board in Northern Ireland will be reassured that politicians will not have an input in judicial appointments and removals. There is an important role for Assembly politicians to play in many other areas, but judicial appointment and removal should not be a matter for party politics. We support this clause as it is an improvement on the current position and it is in line with our party policies and our manifesto commitments.

Mr. Laurence Robertson: I wish briefly to place on record our opinion that this part of the Bill is actually the most agreeable, largely for the reasons given by the hon. Member for Belfast, North (Mr. Dodds) and especially given the difficult negotiations that have taken place up to this point. It is my understanding that the question of who appoints the judiciary has been one of the sticking points, and it is therefore important that politicians are taken out of the process of selection or dismissal of the judiciary. The principle of separation of powers comes to mind, but, given the sensitive situation in Northern
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Ireland, this is the best way forward. I am therefore afraid that we cannot support the hon. Member for Belfast, South (Dr. McDonnell) if he presses this issue.

Paul Goggins: I have a very long speech, but the House will be delighted to learn that I do not intend to use it all.

I thank the hon. Members for Tewkesbury (Mr. Robertson) and for Belfast, North (Mr. Dodds) for their support. The phrase used by the latter to describe this clause was “an advance” and, much as it grieves me, I have to disagree with my hon. Friend the Member for Belfast, South (Dr. McDonnell) on this point. In the discussions that we have had today, the issue of independence has been at the forefront of our minds in relation to other matters. Clearly, in the separation between judicial appointments and removal on the one hand and the political process on the other, there is always a delicate balance to strike. It is important that we strike it in the right place—and in this context, that we strike it in the right place for Northern Ireland.

6.30 pm

Clause 2 introduces schedules 2 to 6—in other words, most of the content of the Bill—and makes provision in relation to judicial appointments and removals. In broad terms, the Bill provides that responsibility post-devolution for most judicial appointments will rest with the Northern Ireland Judicial Appointments Commission and that the role for the First Minister and Deputy First Minister, as originally envisaged under the Justice (Northern Ireland) Act 2002, would fall instead to the commission. Let me give an example. New section 12 of the Judicature (Northern Ireland) Act 1978 provides that the Lord Chief Justice and lords justices of appeal shall be appointed by Her Majesty on the recommendation of the Prime Minister. Before making a recommendation, the Prime Minister must consult the Lord Chief Justice or, if that office is vacant, the senior Lord Justice of Appeal who is available, and the Judicial Appointments Commission. The proposed procedure is broadly similar to that set out in the 2002 Act, although the requirement on the Prime Minister to consult the First Minister and Deputy First Minister and their subsequent engagement with the commission are removed.

In terms of removals, the 2002 Act also anticipated that the First Minister and Deputy First Minister would be responsible for the removal of listed judicial office holders after devolution. Paragraphs 5 to 7 of schedule 3 amend sections 6 to 8 of the 2002 Act to provide that the Executive functions that the First Minister and Deputy First Minister would have exercised in relation to the removal of listed judicial office holders will instead be conferred on the Lord Chief Justice as head of the judiciary in Northern Ireland, or on the Northern Ireland judicial appointments ombudsman.

The key point is that amending the arrangements for judicial appointments and removals so as to omit any Executive function for Northern Ireland Ministers has clearly been a key element of the agreement between the parties setting out the process leading to the devolution of policing and justice powers. Indeed, let me refer explicitly to the letter from the Assembly and Executive Review Committee. This was agreed:

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The schedules do exactly that. We are entirely in line with the mood from the Assembly and Executive Review Committee and with the will of the Assembly as a whole. The clear separation and the removal of the First Minister and Deputy First Minister from their advisory and appointment functions is broadly supported and is the right way forward.

Question put and agreed to.

Clause 2 accordingly orde red to stand part of the Bill.

The Chairman: We now come to amendment 18.

Mr. Eddie McGrady (South Down) (SDLP): With the permission of the House, I should like to ask leave to withdraw the amendment.

The Chairman: I am grateful to the hon. Gentleman, but silence would have effected the same result.

Clause 3

Miscellaneous Amendments

Mr. Laurence Robertson: I beg to move amendment 10, in clause 3, page 2, line 17, at end add—

‘(4) Section 22 of the Justice (Northern Ireland) Act 2002 is amended as follows—

(a) for subsection (2) substitute—

“(2) The Attorney General for Northern Ireland shall be appointed by the Lord Chief Justice and the provisions of section 5 (as amended) shall have effect for the procedure governing such appointment”.

(5) In the Justice (Northern Ireland) Act 2002 omit section 41.’.

The Chairman: With this it will be convenient to discuss amendment 11, in schedule 3, page 15, line 12, at end insert—

‘(11A) In section 42 for subsection (1) substitute—

“(1) The Director must exercise his functions under the superintendence of the Attorney General for Northern Ireland in relation to devolved matters and the Advocate General for Northern Ireland in relation to retained matters and is subject to any directions given by either of them thereunder, but a failure to comply with this subsection does not affect the validity of anything done by or on behalf of the Director.”’.

Mr. Robertson: We have reached the amendments rather earlier than I had anticipated, but I am not complaining about that. Nevertheless, I want to tell the Government that we are still short of time.

We have talked a lot about strengthening the independence of the judiciary. One of our proposals is that the Attorney-General for Northern Ireland should be appointed by the Lord Chief Justice on the advice of the Judicial Appointments Commission and not by politicians. I know that when the right hon. Member for Belfast, East (Mr. Robinson) intervened at an earlier stage, I said that I would return to that point. I have since had a brief word with him to clarify his concern. We have talked about the matter and we feel that our amendment is probably the best way forward. I cannot go into all the details now, as I do not have time, but if we get time later we can return to that point. We have discussed the matter with our shadow Attorney-General. We have had extensive discussions about the amendment
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and we feel that it would improve the Bill. We believe that the amendment would have the added advantage of strengthening the principle of devolution, as the independent nature of the appointments system, free from political interference, would stabilise a very sensitive process.

We are also concerned about how, under the proposed model, the Director of Public Prosecutions after devolution would be left without supervision or protection by a person accountable to the Assembly. We agree that his role should be made independent and free from politicians, but the Government propose creating a hybrid that, in effect, would leave him entirely unaccountable and unprotected.

The DPP has far reaching powers. His is a very powerful role—for example, he can enter a nolle prosequi application, or decide to prosecute or to stop criminal proceedings—yet he is answerable to no one. He may carry out his functions how he wishes, and he would be removed only in extreme circumstances, such as if he were totally failing to carry out his role. We do not believe that that should be the case. The DPP, like other members of public bodies and the judiciary, should be capable of being held accountable. We propose that he should enjoy the supervision of the Attorney-General for Northern Ireland on devolved matters, and of the Advocate-General on reserved matters.

Our amendment would have the added advantage of providing the DPP with a colleague who could speak for his Department in the Assembly. In Great Britain, the Attorney-General is a member of the Government and can speak in Parliament on behalf of the Crown Prosecution Service, so we feel that the DPP should have the same protection in Northern Ireland. We feel more strongly about this part of the Bill than about most others.

Mr. Woodward: Has the hon. Gentleman had time to consider how he can square the proposals in his amendment with the advice given to the review of the criminal justice system in Northern Ireland? That gave very clear indications as to how the legislation should be set out.

Mr. Robertson: We have not had a huge amount of time, but we have studied the matter to the extent that we were able. We are still persuaded that we are putting forward a better argument.

Mr. Woodward: I know how strongly the hon. Gentleman feels, and I hear that he may be proposing to divide the House over this amendment. That would matter a great deal, as the signal that that would send out is so important.

The advice to which I am referring makes it very clear why the review decided that the separation should take place in the way that is set out in the Bill, and why it should be structured as we propose. The review was carried out in 2000 and published in 2002, which means that, even if they have not drawn it to his attention before today, the hon. Gentleman’s advisers have had several years to look at it. His amendment would tear up the proposals in the Bill. Why, given the importance of the future and stability of the criminal justice system in Northern Ireland, does he choose to advocate that?

Mr. Robertson: Well—

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Mr. Jonathan Djanogly (Huntingdon) (Con): Will my hon. Friend give way?

Mr. Robertson: Certainly.

Mr. Djanogly: I thank my hon. Friend. Does he agree that the model being adopted is more or less the same as the one that exists in the Republic of Ireland? The model that he is talking about is more like the English one.

Mr. Robertson rose—

Mr. Woodward rose—

The Chairman: Order. I have to maintain some semblance of order here. The hon. Member for Tewkesbury (Mr. Robertson) was taking an intervention from the hon. Member for Huntingdon (Mr. Djanogly), so I think that he has to be allowed to respond to that before he can take any further interventions.

Mr. Robertson: I can respond very simply to my hon. Friend the Member for Huntingdon (Mr. Djanogly). We have of course discussed the matter, and I agree entirely with him.

Mr. Dodds: Surprise!

Mr. Robertson: Our great difficulty with the Bill as it stands is that we believe that the DPP will be accountable to no one, and we cannot accept that. We also see that he will be completely unprotected by anyone able to report to the Assembly. That is the basis for our argument.

My hon. Friend the Member for Huntingdon has momentarily left his seat, but I know that he will be seeking to catch your eye, Sir Alan. Perhaps he and the Secretary of State will be able to attack each other without me having to act as referee, but I have set out the basis for our objection to the Bill as it stands.

Mr. Woodward: I am always delighted to engage with the hon. Gentleman, but with huge respect, given the importance of the issue, the signal that the amendment sends and the work of the criminal justice review, before he decides to divide the House, may I suggest that if he and his advisers are not up to speed with the criminal justice review—it can happen to any of us—they take the time to get up to speed, before we send what would seem to be a very destabilising signal to the criminal justice system in Northern Ireland?

Mr. Robertson: I am grateful for the way in which the Secretary of State is attempting to persuade me not to press the amendment to a Division, but we have discussed the issue as far as parliamentary time would allow. He tried, very gently, to persuade me not to push the case, so I will respond as gently as I can: we have all been put in a difficult position, not only by today’s unnecessarily tight timetable, but by the timetable under which the Bill was laid before Parliament. I know that the Secretary of State delayed its introduction for one week, but we still had very little time to discuss it. Nevertheless, we have certainly consulted the document to which he refers, and we are concerned about the fact that the DPP would be in a difficult position if our amendment were not carried.

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