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Lord Glentoran: I thank the Minister, but I am not satisfied. I do not say that three months is the right prescription in any way, but the Minister made the point herself when she read the clause. It starts with the words "If the Prime Minister". While many other things are happening, the Prime Minister may suspend the Lord Chief Justice. Nobody in our constitutional system can put any pressure on the government of the day to take further action if they choose not to for various reasons. It is not beyond the wit of man to insert some form of phraseology that allows the government of the day to be called to account for their actions, even if it is only to oblige them to come to the House, explain what they are doing and satisfy the system.
Clause 8 as it stands, with no pressure on anybody other than that in the Human Rights Act—goodness knows what might happen to that in years to come—is not good legislation and will not give confidence. I ask the Minister and the noble and learned Lord the
Lord Privy Seal, who is working with her, to give the matter further consideration and see whether some redrafting can achieve what we are trying to achieve.
Baroness Scotland of Asthal: We shall certainly take the matter back and consider it. I would of course pray in aid the fact that, as sub-paragraph (8) makes clear, the Prime Minister has the power to suspend from office with the agreement of the Lord Chief Justice. There are already provisions in the Bill for that but we will certainly take the matter away and consider whether there is anything further that we can do to allay the concerns of noble Lords. However, I issue a caution in that regard because of the extreme difficulty that we may find in prescribing precise time limits.
Lord Glentoran: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 74 and 75 not moved.]
Clause 7 [Removal from listed judicial offices]:
Lord Rogan moved Amendment No. 77:
- Page 5, line 43, leave out from second "the" to end of line 44 and insert "Lord Chief Justice"
The noble Lord said: In moving this amendment, I shall speak also to Amendments Nos. 78 to 81.
Clause 7 is concerned with the removal of persons from listed judicial offices. As the Bill is currently drafted, that includes the downgraded office of judge of the High Court. The power to remove or suspend, however, is retained by the First Minister and Deputy First Minister, who again act jointly with the approval of the Lord Chief Justice. That provides a measure of protection but it does not protect from the scenario in which the Lord Chief Justice believes a person should be removed. The tribunal, under Clause 8, recommends removal if either the First Minister or Deputy First Minister desires removal. The holder of the office of either the First Minister or Deputy First Minister again has a de facto veto on removal.
The amendments place the power in the hands of the Lord Chancellor on the recommendation of the tribunal, but without parliamentary oversight. That reflects the different status of the listed judicial offices. I beg to move.
Baroness Scotland of Asthal: Amendments Nos. 77 and 79 place the power to remove or suspend a person from a listed judicial office in the hands of the Lord Chief Justice, rather than those of the First Minister and Deputy First Minister. I understand that that amendment is very much in line with the general thrust of the amendments that have been tabled by the noble Lord, Lord Rogan. However, the Bill currently provides for the First Minister and Deputy First Minister to perform that function only on the basis of a recommendation from a judicial tribunal and with the agreement—I stress "with the agreement"—of the Lord Chief Justice. That role reflects the position held by the First Minister in Scotland.
We expect action under the clause to be a rare event. The process of removal from judicial office is very much linked to the process of appointment. The review recommended a role for the First Minister and Deputy First Minister in appointments to provide political accountability, as we said earlier this afternoon. The same holds true for the removal procedure. Amendments Nos. 77 and 79 merely achieve the removal of the element of political accountability that was advocated by the review. Members of the Committee should be reassured that the Bill also provides the safeguard that any removal—I stress that—can take place only on the recommendation of the tribunal and with the agreement of the Lord Chief Justice. We therefore have a safety net in relation to removal.
None the less, we consider it appropriate that the agreement of the Lord Chief Justice, in his capacity as head of the judiciary in Northern Ireland, to the removal of the holder of a listed judicial office, should be sought. We are content that the provisions, as drafted, achieve an appropriate balance. We therefore urge the noble Lord to withdraw the amendment.
Lord Rogan: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 78 to 81 not moved.]
Clause 8 [Tribunals for considering removal]:
The Deputy Chairman of Committees (Lord Brougham and Vaux): There is a misprint in Amendment No. 82 on the Marshalled List. The words to be deleted should read:
- "First Minister and deputy First Minister, acting jointly".
- Page 6, line 19, leave out "First Minister and deputy First Minister, acting jointly" and insert "Lord Chancellor"
The noble Lord said: I shall speak also to Amendments Nos. 84 and 85. Clause 8 deals with tribunals for removal from judicial offices. There are two types of tribunal in terms of composition, the distinction being made below the level of judge of the High Court. It seems somewhat perverse to place High Court judges within listed judicial offices in Clause 7 rather than Clause 8, yet within Clause 8(4) rather than Clause 8(5). Our amendments are consistent with removing the veto of the First Minister and Deputy First Minister.
As the Bill stands, the First Minister and Deputy First Minister must act jointly in convening a tribunal for removing the Lord Chief Justice. Again it is only this office who may convene a tribunal and at no point are they obliged to do so, thus again enabling either the First Minister or Deputy First Minister to stifle the removal process at the outset. I beg to move.
Lord Glentoran: I shall speak to Amendment No. 83, which would simply add, "with the agreement of the Prime Minister" to Clause 8(1). The tribunal to consider the removal of the Lord Chief Justice may be
convened by the First Minister and Deputy First Minister. As I understand it, the Prime Minister has considerable input into the appointment of the Lord Chief Justice. It seems to me that he or she should be kept in the loop for the firing of the same Lord Chief Justice.
Lord Desai: It may be helpful if I include my Amendments Nos. 87 to 90, which are on the same clause, because in a sense my worry is exactly the opposite of that of other noble Lords. The committee on the administration of justice drew my attention to the issue. In setting up the tribunal, there is a great dominance of the judicial element, judging itself, more or less. I would like a greater lay element. I am going in the opposite direction to other noble Lords. I want to make sure that these tribunals do not seem like a closed shop judging itself. There should be a greater element of ordinary solicitors and barristers or more of a lay element in deciding these matters. It may be helpful for the Committee to consider all of these amendments together.
Baroness Scotland of Asthal: There may be some misunderstanding as to how the system would operate, so I shall go through my understanding of what the amendments would do and how I think it plays in. It may be important for us to take some of this slowly. Amendment No. 82 would remove the power of the First Minister and Deputy First Minister to convene a tribunal to consider the removal of the Lord Chief Justice and would place that power in the hands of the Lord Chancellor. Amendments Nos. 83 and 86 would alter the procedures for the removal of judges. Amendments Nos. 84 and 85 would remove the role of the First Minister and Deputy First Minister in convening tribunals to consider the removal of any other judicial post holder.
Lord Glentoran: Amendment No. 83 refers to page 6, line 19, which is about,
- "A tribunal to consider the removal of the Lord Chief Justice".
Baroness Scotland of Asthal: Amendments Nos. 83 and 86 would alter the removal of judges. I understand, therefore, that the noble Lord seeks simply to relate this to the Lord Chief Justice.
If we look at how the system will work, as we understand it, the review recommends that,
- "The removal from office of a judge or lay magistrate should only be possible on the basis of a finding of a judicial tribunal constituted under statutory authority and convened by the First Minister and Deputy First Minister or the Lord Chief Justice, that a magistrate or judge was unfit for office by reason of incapacity or misbehaviour".
By removing the role envisaged for the First Minister and Deputy First Minister from this process, these amendments are directly contrary to the review. They also remove the local political accountability which the review was careful to inject into both the appointment and the removal process.
From other amendments tabled to Clauses 4 and 5, both in this Committee and by others in another place, it is clear that noble Lords are wary of the role to be played by the First Minister and Deputy First Minister in the appointment and removal process. Perhaps noble Lords would prefer these powers to remain in the hands of the Lord Chancellor at Westminster with an equal role for the Lord Chief Justice as a nod to devolution. All the comments that I made earlier about trust and truly taking on board that we are moving forward apply equally here. I have to say that, if we were to move along this line, it would be a backward step.
More important, Amendment No. 83, taken with Clause 8(3), requires the Prime Minister to give his agreement and to be consulted before a tribunal can be convened to consider the removal of the Lord Chief Justice. In addition to that, although the First Minister and Deputy First Minister can convene a tribunal to consider the removal of the Lord Chief Justice in this clause, Clause 6 makes it clear that they cannot in fact remove a Lord Chief Justice on the basis of this tribunal. Only the Prime Minister and the Lord Chancellor can do that under Clause 6 by making a Motion for the presentation of an Address to Her Majesty. Therefore, what the noble Lord seeks is already in place in Clause 6.
I hope that that reassures the noble Lord. While it is sensible for the First Minister and Deputy First Minister to consult the Prime Minister when considering convening a tribunal to remove a senior judge in Northern Ireland, it is unnecessary to require his approval at this stage as well as when a Motion is made, because one would be double-banking it, to use the colloquial expression. As I pointed out earlier, we must have a little faith in the new institution and give every opportunity for devolution to work. I urge the noble Lord to withdraw the amendment.
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