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Lord Molyneaux of Killead: The noble Baroness touched on a sensitive nerve when she said "at the moment", as the Committee is probably in some difficulty, given that later clauses provide for interference and contamination of the judiciary. The amendment seems a sensible precaution, because, hopefully, we may be able to reduce the hideous danger of what I call the contamination of the judiciary and subjecting the judiciary to unwarranted political interference.
Baroness Scotland of Asthal: I do not know whether I can help a little further. Noble Lords will know that the legal profession at the moment is drawn from a wide pool both in England and Wales and in Northern Ireland—a pool from which there is no restriction. The independence of the profession, therefore, is very much supported by the rules and regulations that are operated by the independent monitoring bodies for both parts of the profession—solicitors and barristers. None of that is proposed to change, so their intrinsic independence will be maintained. At the moment, there seems no reason to change the status quo. I say "at the moment". There has not been any reason to
change the position for the past 200 years. I cannot say there will be no reason for the next 200 years, but let us wait and see.
Lord Glentoran: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Rogan moved Amendment No. 5:
- Page 1, line 10, after "Appeal" insert "or judge of the High Court"
The noble Lord said: This is the first time I have spoken in a Grand Committee—indeed, it is the first time I have been present in Grand Committee. If I should stray from the straight and narrow or fail to obey the rules and conventions, no doubt the Deputy Chairman will correct me so that I may do better in future.
The Bill seems to divide judicial appointments into two categories—the list of judicial offices contained in Schedule 1 and what other parts of the Bill refer to as "most senior judicial offices". The amendment would remove the office of judge of the High Court from the list in Schedule 1 and place it with the other most senior judicial offices. The Bill seems rather confused on that issue. Bearing in mind that there are only seven judges of the High Court in Northern Ireland, one must ask whether such judges should be bracketed with Lords Justices of Appeal, or with magistrates and members of the Land Tribunal.
The implication for judges of the High Court of that relegation in status is that they will fall under the proposed Judicial Appointments Commission. Given recent events in relation to the appointment of the Chief Constable in Northern Ireland, those political appointment panels inevitably prove controversial. Members of the Committee should note that although the Judicial Appointments Commission will not involve Members of the Northern Ireland Assembly—Members of the Assembly are appointed to the Policing Board—nevertheless representatives to the Judicial Appointments Commission will be made by the First Minister and Deputy First Minister.
Under the old Stormont regime, the appointment of High Court judges was reserved to Westminster. The line was drawn below the High Court level. The notion of the appointments procedure is accepted but I have described the way in which lines are drawn. I beg to move.
Baroness Scotland of Asthal: In relation to the devolution process, it is intended that a greater number of matters will be devolved than was anticipated in 1972 because we are dealing with a fresh situation. The amendments were considered in another place and the intention is to give High Court judges the same appointment procedures and tenure as the Lord Chief Justice and Lords Justices of Appeal. We do not accept that that is a necessary amendment. The review makes it clear that the Judicial
Appointments Commission should appoint all judges, up to and including High Court judges. This is what the Bill provides for and that is what the noble Lord's amendment would remove.The Government agree with the review that it is appropriate to differentiate at this level. We are very much in agreement with the line that was taken in relation to Scotland, where appointments and removal to the equivalent level are devolved. We do not see any basis at the moment to differentiate between the judgment made by the review and the position taken in relation to the Scottish model.
Lord Mayhew of Twysden: I support, perhaps tentatively, the arguments advanced by the noble Lord, Lord Rogan, who moved the amendment. At present, High Court judges are appointed by the Lord Chancellor. Becoming a High Court judge is always regarded as a significant step up in the hierarchy of seniority from being a county court judge. It is very important that that should be maintained and recognised—a High Court judge, in his criminal jurisdiction, has, after all, jurisdiction to try the most serious criminal offences and to impose the most serious criminal sentences. In his civil jurisdiction, he has power under the judicial review procedure to make orders of the most far-reaching consequence. In his civil jurisdiction, there is no limit to the value of the cases that may be tried. The fact that there are only seven High Court judges in Northern Ireland seems to highlight the crucial importance of appointing judges by reference, explicitly and patently, to their merit. It is more important that they should be of such merit than that many of those who appear in the list in Schedule 1 should be of that merit, by reason of the fact that their jurisdiction is so much more important. The Government need to ask themselves—and share with us the answer—why a separate procedure is envisaged in the Bill for Court of Appeal judges. I suggest that the answer is because they have very much greater authority in the sense that with them lies—subject to the Judicial Committee of the House of Lords—ultimate appeal within Northern Ireland.
That is a question of balance and of hunch. I see the importance of following, where possible, the recommendations of the excellent review. That is a weighty matter. In this regard, there is a substantial case for excluding from the appointment of the Judicial Appointments Commission the appointments of the seven High Court judges. I do not wish to say more at the moment. I would be grateful if the Minister would explain why the break point should be between High Court judge and Court of Appeal judge rather than between county court judge and High Court judge.
Baroness Scotland of Asthal: I entirely agree with the noble and learned Lord in relation to the importance of the role played by all High Court judges. He rightly said that the appointment of a High Court judge is an indication of the highest possible merit. If I may respectively say so, however, that is as true of England and Wales as it is of Northern Ireland. It has to be borne in mind that the seven High Court judges in
Northern Ireland are responsible for 1.5 million people. The judges in England and Wales—they are equally important and equally discharging weighty matters—are responsible for an equal if not greater number of citizens of our country.The real reason—the review recognises this—is that the Lord Chief Justice and Lords Justices of Appeal are Privy Counsellors with wider UK responsibilities. At the level of a High Court judge, of course, the High Court judge's jurisdiction is in relation to Northern Ireland or England and Wales. At that stage, there is a separation. One has to look at a situation where devolution will mean that justice should properly be entrusted to the new devolved administration. It was, therefore, thought right and proper that the line should be drawn at the level below that at which the judges become Privy Counsellors with UK-wide responsibility. That was the line drawn in relation to Scotland. It was thought right that a similar line should be drawn in relation to Northern Ireland so that it will be given the same trust and confidence if in due course that all appears to be merited and may enable the devolution of justice matters to them to take place.
It is always going to be difficult to draw the line at the right place. Arguments will doubtless be made either way. Some would perhaps have urged that the line be drawn higher and some—as they do today—that it should be lower. The review got it about right and it should, therefore, be supported. There is some sense in the way in which the matter has been put forward. We would, therefore, respectfully adopt it and invite those Members of the Committee to be more comfortable with it than they have perhaps been hitherto.
Viscount Brookeborough: I am fearful of venturing into this debate because I am a lay person in judicial matters. However, I must own up to being a member of the Policing Board in Northern Ireland. The noble Lord, Lord Rogan, referred to the Policing Board and the recent appointment of a Chief Constable for Northern Ireland.
As I understand it, the High Court Judges are the highest part of our internal judicial system in Northern Ireland. The Policing Board has appointed a new Chief Constable. I was not on the sub-committee that did it, but he was appointed by the board and ultimately by the Secretary of State. However, there is a tremendous row going on at the moment about that appointment.
We are all aware that the Policing Board consists of political and independent members. I am an independent member of it. I am as independent as the other independent members, but every one of them is labelled in the public's view as being on one side or the other, with the possible exception of one person from an ethnic minority in Northern Ireland. There is no question about the public perception of the make-up of the Policing Board or any committee of it. That is why we are having a row.
As a member of the board, I have no doubt about the integrity of the people who took part in that choice of Chief Constable. However, it is not what happened
within the confidentiality of that meeting or series of meetings that is perhaps having a detrimental effect on the person who may be taking up that post and the people who were rejected; it is what the public perceive.If that system works in Scotland, that is okay for Scotland. We are talking about justice within Northern Ireland. We are trying to do something far sooner than many of us would have expected four or five years ago or even last year. Therefore, the perception of this is going to be all-important. I honestly do not think it is the right time to do it at present.
Secondly, the Minister has twice already hidden behind this review and what the review says. Later on we will find that the Government will disagree with the review. I beg to suggest that the review is not a Bible on what is right and what is wrong. This could have very serious consequences in Northern Ireland if it is perceived by the public to be wrong. I have no doubt that when the commission is appointed it will be made up of people of the utmost integrity who will not permit their background—whatever it may be—to interfere with their decision.
4.15 p.m.
Lord Mayhew of Twysden: May I take advantage of the rules of this Grand Committee to come back again, I hope not at undue length? What we have just heard is very much from the noble horse's mouth, and I suggest that we should take it very much to heart. In the whole of my time dealing with Irish affairs—which of course is minuscule compared with that of many who sit opposite, but it goes back ministerially for a period of nine or more years—I have never heard it seriously suggested that the judges were other than completely impartial.
As it happens, it was a matter of felicity that in the High Court at least the judges from the main minority—the Catholic community—represented the demographic proportion of their religion, and sometimes a shade more. The point was that they were appointed not by machinery originating within Northern Ireland, but by the Lord Chancellor—of course, by reference to the judges in Northern Ireland and other proper sources, I do not doubt. I hasten to add, however, that they never included the Executive, nor should they have done so.
We have just heard a cogent explanation of why it is important that that should not be disturbed and how readily foreseeable it is that suspicion will arise if it is disturbed. That should be taken very much to heart. From my standpoint, I certainly see it as soundly and realistically based.
The Minister said that the distinction between a High Court judge and a Court of Appeal judge was that the latter was a member of the Privy Council. That, of course, is true—it is a formal distinction. However, I would like the Minister to help the Committee—if not now, perhaps at a later stage—with such instances as are recorded of the extent to which, by virtue of being members of the Privy Council, Court
of Appeal judges in Northern Ireland have exercised UK responsibilities. It may be that they have, but I cannot call any instance to mind. It may be that they sit, not infrequently, in the Judicial Committee of the Privy Council, but I do not think so. If that is to be the ground of the distinction, perhaps we could be told—if not now, at a later stage—how often the extra jurisdiction is exercised.
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