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Lord Glentoran: I thank the Minister for that explanation. I shall not press my amendment.

Lord Rogan: I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 33 to 38 not moved.]

6.15 p.m.

Lord Glentoran moved Amendment No. 39:

The noble Lord said: The amendment concerns the principle of devolution. If judicial appointments and the whole judicial system are to be devolved to Northern Ireland, it is consistent that members of the Legislative Assembly should not have a role on the Judicial Appointments Commission. When those functions have been devolved by this Parliament, the Assembly will have a role in exercising them through its direct election of the First Minister and Deputy First Minister. However, it strikes me as slightly odd that a Member of the House of Commons should be disqualified from serving on the Judicial Appointments Commission. I beg to move.

Baroness Scotland of Asthal: Of course, I hear what the noble Lord says about it being odd, but we respectfully suggest that it would be rather odd if MPs were to sit. The amendment would allow members of the Judicial Appointments Commission to sit as MPs, which is unprecedented for lay members of public bodies. Furthermore, of all the areas to bring into politics, the judicial appointments process looks one of the least likely. Of course, we appreciate the view articulated in another place that once we devolve justice matters to Stormont, there is no conflict of interest for Westminster MPs, but we must respectfully say that we do not agree.

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The review states specifically that there is a greater need than ever to insulate the appointments process from any possible suspicion of political influence. Creating an independent Judicial Appointments Commission is one way of doing that. The amendment would remove the independence that the review sought to create, leading to all sorts of potential forms of political mischief and questionable appointments. I am sad to disagree with the noble Lord on this matter.

Lord Glentoran: I thank the noble Baroness and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 2, as amended, agreed to.

Clause 4 [Appointment to most senior judicial offices]:

Lord Rogan moved Amendment No. 40:

    Page 3, line 20, leave out "First Minister and deputy First Minister" and insert "Lord Chancellor"

The noble Lord said: I will speak to Amendments Nos. 40, 41, 44, 45, 46 and 47. These amendments come to the nub of the unease that we feel about aspects of the Bill. This whole aspect of Clause 4 is concerned with the appointment of the most senior judicial officers, including the judges of the High Court, which we debated at length earlier. The amendments would remove the role for the First Minister and Deputy First Minister in the appointments procedure either as consultees or as persons making recommendations.

As has been mentioned several times this evening, there is a real concern in Northern Ireland about the politicisation of the judicial appointments process. It seems excessive and unnecessary for the First Minister and Deputy First Minister to make a recommendation to the Prime Minister. What real advice could those politicians provide to the Prime Minister on appointing the Lord Chief Justice or Lord Justice of Appeal, other than their perceived political opinion or religious background? Given the numerous legal challenges to decisions made in the light of the agreement already, including the First Minister and Deputy First Minister in the process of selection poses obvious problems.

The review said:

    "In the Northern Ireland context it is important to keep any hint of political input out of the appointments process."

Devolution does not necessitate the devolution of the judicial appointments process. One does not follow the other. Devolution relates to the legislature, the Executive and the Government, which is quite a separate branch of the state.

Again I refer to subsection (5), which provides that the First Minister and Deputy First Minister must act jointly in making their recommendations. That provides either of those two MLAs with a power of veto over any individual appointment.

The Belfast agreement itself does not indicate or dictate that all decisions that are to be made by the First Minister and Deputy First Minister must be joint ones. Such language crept in and was the creation of the draftsmen of the Northern Ireland Act.

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Our proposition involves opposition to the devolution of judicial appointment functions, as distinct from the functions of criminal justice to which we look forward.

Baroness Scotland of Asthal: I hope that Members of the Committee are content with taking this rather large group of amendments together; I thank them for so doing. Overall, the effect seems to be turn over the roles of the First Minister and the Deputy First Ministers in the process of appointing judges to the Lord Chancellor. In the Bill, the First Minister and Deputy First Minister have the role recommended for them in the review, which recognised the importance of a carefully managed degree of political accountability. The importance of the role was discussed at length in another place. In the devolved scenario, the Government feel that we must give the First Minister and Deputy First Minister in Belfast the same trust that we extend to the Lord Chancellor in Westminster.

I am sure that Members of the Committee agree that devolving justice matters, including judicial appointments, to the Northern Ireland Assembly would be a positive and welcome development, which would help to underpin the stability of that institution.

Amendment No. 41 seeks to remove the duty to consult the Lord Chief Justice in making senior judicial appointments. If I may respectfully say so, that seems odd. As the senior judicial figure in Northern Ireland, the Lord Chief Justice is bound to have a valuable insight into the candidates. It would surely be unheard of for him not to be consulted. We seek to be transparent about his role by placing it in the Bill.

We invite the noble Lord to consider withdrawing the amendment because it will do violence to the import of what we seek to do in terms of devolving appropriate responsibilities to the First Minister and First Deputy Minister.

Lord Glentoran: A few weeks ago, when I started working on this matter, I went through the same process as did the noble Lord, Lord Rogan, and his Ulster Unionist colleagues, and I considered tabling similar amendments. However, I later came to the conclusion that if we were to devolve, we had to do so. I scratched out those amendments and never tabled them.

I am afraid that I am now going to be party political. The fact that the amendments have been tabled by the Ulster Unionist Party and the fact that a considerable number of those amendments are of significant import, shows the confidence—or lack of confidence—in the Government's handling of the Northern Ireland situation and the peace agreement. Steadily over the past few years, the Government have lost the confidence of the Unionist party. I hope and believe that they realise that and I hope that they will attempt to find ways of recovering it—perhaps they have been doing so during the past few months. I hope

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that the noble Lord, Lord Rogan, and his colleagues will forgive me, but this is a clear demonstration of where we are in that regard.

Lord Mayhew of Twysden: I hope that the Minister will acknowledge that there is an important distinction between the appointing Minister in the present situation—the Lord Chancellor—and the appointing Ministers under what is proposed by the Bill.

The Lord Chancellor wears three hats as we know. In his capacity as minister for justice, he is required to separate himself entirely from partisan considerations. By reason of his background—not to mention the momentum of many centuries of precedent—he has the training to do that. It is asking a great deal more of politicians, who will become the First Minister and the Deputy First Minister, to take that on. That is why I understand what lies behind these amendments and why I hope that the Minister will express some sympathy with them, particularly in light of the significance that is attached in the review to the overriding importance of avoiding any imputation of political taint or bias in this procedure.

If one has experience of the Northern Ireland scene, it is all too easy to foresee that some quarters in Northern Ireland will perceive it to be an impossible task for the First Minister and the Deputy First Minister to be able to achieve that separation from partisan concerns. That is what lies behind the proposal, with which I have a good deal of sympathy. I have just enough enthusiasm for demonstrating confidence in the whole process to go along with what is proposed in this regard but I hope that the Minister will acknowledge that there is an important distinction to be made between the two sets of Ministers. That is what gives rise to the anxiety that lies behind the amendments.

6.30 p.m.

Baroness Scotland of Asthal: I say to the noble and learned Lord, Lord Mayhew, that we recognise those sensitivities and the anxiety. It would be easy to say that the Lord Chancellor should simply retain the responsibility that he currently has and that there should be no change. One sees the temptation in that argument.

We face a challenging choice about whether or not to put confidence in the devolution process. We have to resist an understandable temptation to take a path that would not enable the process to be successful; I know that all Members of the Committee desire that very much.

Therefore, the position that the First Minister and Deputy First Minister will be put in is significantly different from that which the Lord Chancellor enjoys in relation to England and Wales. It is for that reason that we believe that it is important that the role of the Lord Chief Justice should be transparent, open and clearly stated, and that the commission should play a role in the appointment process. Members of the Committee will know that that is a clear difference between what is proposed for Northern Ireland and what is proposed to be retained in England and Wales.

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The future, of course, has to be provided for. We believe that the balance of the Bill, as currently framed, provides that safety net which enables the political responsibility to be exercised judiciously by the First Minister and the Deputy First Minister. Appropriate safeguards are provided elsewhere by the commission and the Lord Chief Justice. I invite the noble Lord to withdraw the amendment.

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