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Lord Molyneaux of Killead: I very well remember the period when the legislature was broadly under the remit and influence of Stormont. I was serving at that time as a magistrate. There was a general perception on both sides of the community that the judiciary at all levels was somehow or other manipulated by the Unionist government. We did our best to point out that that was not really the case, but it was difficult entirely to refute the allegation that, even at my humble level, I was not somehow or other under pressure. It may horrify some of my former colleagues if I say that there was a degree of subtle pressure, which I resisted all along. I simply said, "I am sorry. I am not responsible to you. I was appointed by the Lord Chancellor". That made me unpopular.

The problem was that, rightly or wrongly, there built up a kind of perception, belief or understanding—or misunderstanding—that the operation of the judiciary was under the control of the then Stormont Government. It was one of the main causes of the downfall of Stormont. I would not want to see that happen again. I was taught a lesson in that period and would not willingly advocate or support the return of judicial functions to any Northern Ireland politician, whether at Stormont or Westminster.

Lord Desai: What is desirable about the proposition is that two people—the First Minister and the Deputy First Minister—whom no one expects to agree must take part in the procedure. That is the double-lock system that satisfies me, at least, that it may be a bipartisan process, rather than simply a partisan process.

Someone said earlier that Ian Paisley and Gerry Adams would never agree on anything. What if they did? This way, we can be sure that, if politics plays a part in the procedure, it will do so across party lines. The fear is that a single party will dominate, rather than that there will be agreement across parties. That is why there is something to be said for the double-lock of involving the First Minister and the Deputy First Minister.

Lord Smith of Clifton: In speaking to the amendment, I must say that it is clear that the process in Northern Ireland is fragile. One is either an optimist or a pessimist. If the process is to carry on, one must be an optimist—almost against the odds. Therefore, I agree with what was said by the noble Lords, Lord Desai and Lord Glentoran, by the noble and learned Lord, Lord Mayhew of Twysden—who is aware of the sensitivities—and by the Minister.

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We cannot have partial devolution. There can be no clawing back. We must move forward, and that is why I oppose the amendment.

Baroness Scotland of Asthal: I thank the noble Lords who have participated in the debate. I remind them that we have the security that the Judicial Appointments Commission will make the recommendation to the First Minister and the Deputy First Minister. If they cannot agree, the second recommendation by the commission is binding on the First Minister and the Deputy First Minister. An opportunity is given for an agreement, but, in the event of no agreement, the commission's second recommendation becomes binding. I hope that that reminder will give some comfort.

Lord Molyneaux of Killead: It has been said that there is an onus on all of us in Northern Ireland to move forward. I agree with that entirely. However, on this issue, we are not moving forward; we are going back 50 years.

Lord Rogan: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 41 not moved.]

Lord Desai moved Amendment No. 42:

    Page 3, line 23, at end insert ", and

(c) the Judicial Appointments Commission"

The noble Lord said: This amendment goes the other way. Basically, it makes sure of things, like a belt and suspenders. Although it is true that the Judicial Appointments Commission will recommend to the First Minister and Deputy First Minister, the amendment asks for a separate and independent role for the Judicial Appointments Commission to be consulted by the Prime Minister. Basically, this is another cautionary provision to be added to the process. I beg to move.

Baroness Scotland of Asthal: As my noble friend Lord Desai has said, Amendment No. 42 seeks to place a duty on the Prime Minister when making recommendations to the Queen on appointments to the office of Lord Chief Justice or Lord Justice of Appeal to consult with the Judicial Appointments Commission, in addition to the First and Deputy First Ministers and Lord Chief Justice. Earlier in Committee we covered in detail the reasons why there should be a distinction between those appointments made up to the level of the High Court and those made above.

The review made it clear that the commission's direct involvement in appointments should cease at the level of High Court judge. The review further recommended that it would be appropriate to retain a role for Westminster in the appointment of the most senior judicial officers. The Government agreed with the rationale proposed by the review, as well as with the proposal. The Bill adheres faithfully to those recommendations.

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As I mentioned earlier in my remarks, the arrangements also reflect the procedures for such appointments in the devolved administration in Scotland. However, the Bill does provide a role for the Judicial Appointments Commission. It will be consulted on the procedures to be adopted when making recommendations at the most senior level. We are satisfied that this will ensure that best practice on appointment procedures at this judicial level will be observed, while making sure that we are implementing the review recommendation in full. I hope that that explanation will satisfy my noble friend that we have addressed this issue.

Lord Desai: I am grateful to my noble friend for that clarification. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Glentoran moved Amendment No. 43:

    Page 3, line 24, leave out subsection (4).

The noble Lord said: In speaking to Amendment No. 43, I should like to speak also to Amendments Nos. 48 and 49. Amendments Nos. 43 and 49 come together under a general, collective description; we feel that the provisions are all too cumbersome. These amendments would strike out new Section 12(4) and (5) of the 1978 Act so as to remove the duty on the First Minister and Deputy First Minister to determine the procedure—as yet unknown—that they are to adopt for the consultation process.

The appointment will be made by the Queen. We believe that it is far too prescriptive to place a duty on the Prime Minister to consult and then to tell the Judicial Appointments Commission to advise the consultees on the procedure to adopt. That is extremely prescriptive and cumbersome and we feel that there is room for considerable improvement. This is a probing amendment and seeks to make suggestions.

Amendment No. 48—tabled on the assumption that the clause is not removed by the Government, but may be improved to a considerable extent—seeks to involve the government of Northern Ireland; namely,

    "subject to the approval of the Assembly".

That is, I believe, a reasonable insertion at the end of line 28. I beg to move.

Baroness Scotland of Asthal: The review specifically recommended that the commission should be involved in the procedure, which is in line with international best practice. The Bill as drafted accurately reflects the role described by the review. It is consistent with what should be expected. Amendment No. 48 proposes that the First Minister and Deputy First Minister should clear the procedures for making senior judicial appointments with the Assembly. Given that the First Minister and Deputy First Minister are the head of the Northern Ireland Executive and represent the major parties in the Assembly, this would be an unnecessary procedure. It would be unusual in Westminster terms

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and we see no reason why it is needed in Belfast either. We invite the noble Lords not to press those three amendments.

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

Amendment, by leave, withdrawn.

[Amendments Nos. 44 to 56 not moved.]

Clause 4 agreed to.

Clause 5 [Appointment to listed judicial offices]:

6.45 p.m.

Lord Rogan moved Amendment No. 57:

    Page 3, line 42, leave out subsection (1).

The noble Lord said: I shall speak also to Amendments Nos. 58 to 65. Clause 5 makes provision for the appointment of the listed judicial officers by virtue of the Judicial Appointments Commission making recommendations to the First Minister and Deputy First Minister. Schedule 3 is concerned with the transfer of functions in respect of these appointments from the Lord Chancellor to the First Minister and Deputy First Minister. As I have said before, that does not have to take place as part of the process of devolution or the devolution of the criminal justice functions.

The judicial appointments functions are and should remain quite separate. Further to that, there is the consequence of the perceived politicisation of the appointments process. I submit that Clause 5 is flawed. The point at which the selection process for listed judicial officers is initiated is governed by Clause 5(3), by the First Minister and Deputy First Minister acting jointly in serving notice on the commission to select a person for a vacancy. It is not inconceivable that the First Minister and Deputy First Minister will in future exercise a de facto veto over the process. Think for a moment of the consequences of Northern Ireland being short of one or even two High Court judges and no appointment or appointments being made.

When this matter was debated in another place, the Government said that they were not planning for failure in relation to this obvious potential problem. Frankly, that is an inadequate response. I beg to move.

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