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Baroness Scotland of Asthal: I am certainly willing to try to help the Committee on that matter. The importance, of course, is the ability or eligibility to exercise it on a UK-wide basis, as opposed to restricting it to a jurisdictional basis. The noble and learned Lord will fully understand that, whether it is discharged or not—or exercised or not—the distinction is that there is residual power or discretion to so exercise. I hope that the noble and learned Lord will accept that that is, indeed, a material distinction between the two.

The Government will devolve the powers only when we are confident that the structures will bear it and that the parties are ready. For example, there will need to be a cross-community vote in the Assembly in favour, so it will not happen before everyone is ready.

We must also bear in mind several further points. First, we do not treat the review as a Bible from which we cannot detract any jot; we take it seriously. Only if there is good cause to depart from the reasoning of the review do we think that it is right to do so. The Committee will know the amount of work, effort and commitment that brought the review into being. It would almost be an act of vandalism, if I may respectfully say so, to dismiss the recommendations made by the review body, without giving them the most careful and the most judicious consideration. We have made that balance in the way in which we have sought to respond to the recommendations.

Members of the Committee will also be aware that Clause 5(8) provides that the selection of persons for appointment to the office must be done solely on the basis of merit. That merit-based test will continue to apply to High Court judges, and it is simply not right to say that the High Court judges in Northern Ireland, of whom there are in fact eight and not seven—we do not want to displease the eighth member, who may think that they have somehow been neglected—will in some way be the final point of recourse for the citizens of Northern Ireland. The citizens of Northern Ireland will continue to have access to the higher judiciary above the High Court judge, so it is not the end of the road, so far as the citizen in Northern Ireland is concerned.

The important thing is deciding where to draw the line. The noble and learned Lord, Lord Mayhew of Twysden, is absolutely right to say that there has never been a suggestion that those who discharge that onerous but honourable duty have done it in anything other than a totally honourable and independent way, without fear or favour for either or both parts of the community. There is no indication that the pool of talented lawyers from whom the High Court judiciary in Northern Ireland has traditionally been drawn has

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in any way shrunk. I am sure that Members of the Committee know better than I do the courage, determination and fortitude that it takes to be a really first-class professional lawyer in Northern Ireland. It is from that pool that we have taken our judges in the past, and it is from the same pool that we shall take them in the future. As the noble and learned Lord rightly says, we have had judges from both sides of the divide and all have discharged their duties in a way that we would commend.

I understand that this is difficult for noble Lords, but there comes a time when we have to invest a certain element of trust and confidence. If, in due course, we believe that the structures will bear it and the parties are ready, that will be the time when this matter will have to be handed over. Noble Lords know far better than I do that one can never guarantee when that time will be.

It may be important for me to clarify something that was said in response to an earlier question from the noble Lord, Lord Molyneaux. It is not correct to say that the Bill is not to be implemented until after the next Assembly elections. Many of the provisions will certainly be commenced before Assembly elections and others may be commenced before any Act or devolution of justice functions. The main target relates solely to the devolution of justice functions, on which some of the Bill's provisions are dependent. Some of those justice provisions may take a little longer.

Lord Molyneaux of Killead: I am grateful to the noble Baroness. Is her interpretation that the parts which will be implemented will be those that would result from the First Minister and the Deputy First Minister being unable or unwilling to act jointly in terms of the wording of the Bill? Will that be the dividing factor timewise for the devolution of the most important powers in the Bill? As the Bill stands, decisions on the appointment or, believe it or not, the dismissal of judges have to be taken by the two Ministers acting jointly. The laws and the constitution of the Assembly require the First Minister and the Deputy First Minister to be of different political parties and of different religions.

Baroness Scotland of Asthal: The noble Lord's contribution aptly demonstrates the complexity of this issue. The best I can do is to reply in the way I replied earlier, namely that we shall devolve only when we are confident that the structures will bear it and the parties are ready for it. That judgement will have to be made in due course, but we understand the importance and delicacy of that judgment and the need to be proportionate and balanced.

Lord Glentoran: I have nothing much to add except to say that my noble and learned friend Lord Mayhew and the noble Viscount, Lord Brookeborough, have made strong and clear arguments as to why we believe that the Government have got it wrong on this occasion. That is my position as the spokesman for my party.

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Lord Rogan: Could the Minister give me guidance on what criteria the Government would use in deciding that such functions could be transferred to Northern Ireland?

Baroness Scotland of Asthal: I can do no better than quote what was said by my right honourable friend John Reid in relation to the Criminal Justice Review Implementation Plan. On page 2 he says,

    "Once the devolved institutions are working effectively, the Government intend to devolve responsibility for policing and justice functions, as set out in the Belfast Agreement. We need first to take some major steps to implement the Criminal Justice Review and to make some more progress on detailed implementation of the Patten report. A final decision to devolve these functions can only be taken at the time taking account of security and other relevant considerations. But the Government's target is to devolve policing and justice after the Assembly elections scheduled for May 2003".

4.30 p.m.

Lord Fitt: I would be very apprehensive of the involvement of any political figures in Northern Ireland with regard to judicial appointments. Throughout the debate in another place, we were told that the target date is after the Assembly elections of 2003—next year. Again, we have been asked what criteria the Government will set down or abide by and whether or not to devolve the institutions. At the moment, the Assembly seems to have cross-community support. What happens, however, if the elections in Northern Ireland in 2003 throw up a different set of candidates, who will not have the support of the majority of Members in this House?

Those Members who will be elected then, whether we like it or not, will have been elected by the democratic process of voting in Northern Ireland. We are putting ourselves in the position of saying, "We don't like the result of this election, we don't like what the electorate has tried to do so we will not devolve these powers". We are in fact overarching the decision that will have been taken by people in Northern Ireland. Unless we agree with the composition of the political Assembly which is going to be established, those powers will not be devolved.

Perhaps I have been around the House for longer than most. We are talking of political influence in the appointment of judges. Other judges, in this House and in another place, have said that there has never been any political influence. I do not believe that for one moment. There was and always has been political influence in the appointment of judges in Northern Ireland.

I shall illustrate the case. In the early 1970s I was approached by certain members of the legal profession in Northern Ireland to see what I could do to secure the appointment of a particular judge, who was then a QC. He had a fantastic war record in every respect but he had something against him: he was a Catholic. There was no way, in the opinion of the lawyers who approached me, that he was going to get the job. I took it upon myself to go to the then Lord Chancellor, Gerald Gardiner, and the Attorney-General, Elwyn Jones, and I gave the CV of the QC to them. They

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agreed wholeheartedly with me that he was a very suitable person for the appointment. They then told me on the Terrace of the House that they were having great difficulty with the Northern Ireland government, who wanted to appoint someone who had been a former Unionist MP as the judge. An argument waged between the Lord Chancellor's Department and the Northern Ireland government about whether the person should be appointed. The relatives of the judge could give their own evidence on that. At the end of the day, the Lord Chancellor said to me, "We cannot overcome all the objections that had been raised by the Northern Ireland government, who want to appoint this particular judge because he was a former Unionist MP. Do you know what we will do to find the easiest way out of this? We will appoint two judges".

I put that case to Members of the Committee to illustrate the fact that there has always been political influence in Northern Ireland. As the noble Viscount said, the Policing Board had a tremendous row about the appointment of the new Chief Constable of Northern Ireland. The nationalists wanted a particular person whom the Unionists did not, and it finished up in an unmerciful row. It will be exactly the same if there is any political influence—cross-community or otherwise—in the appointment of senior judges in Northern Ireland.

To the Minister, I pose again a question that has already been asked: what happens if the First Minister and his deputy cannot find agreement on a recommendation? Such appointments will be riddled with difficulties of all sorts if there is any political element in the appointment of members of the judiciary.

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