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Lord Maginnis of Drumglass: I am grateful to the noble Baroness for that explanation. Yet again, I am not absolutely convinced, but at this stage I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 12 agreed to.

Schedule 5 [Transfer of functions to Lord Chief Justice]:

On Question, Whether Schedule 5 shall stand part of the Bill?

Lord Maginnis of Drumglass: The schedule comes to the nub of our concerns about parts of the Bill, in so far as it appears almost to go overboard. We shall see other examples of that this afternoon. Rather than devolving powers to the Lord Chief Justice in Northern Ireland, the Bill appears to be almost a preparatory stage for divorce. It suggests to me a separation at least, which is not what the vast majority of people in Northern Ireland would wish. During the

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previous period of devolution until 1972, the powers that are devolved in Schedule 5 to the Lord Chief Justice were not devolved, but were retained by the Lord Chancellor. We believe that that should remain the case. There would be considerable offence and huge suspicion of legislation that so effectively and completely enacted what I call a divorce within the legal process in Northern Ireland. Matters can and should be delegated, but they should not be totally devolved at this level, thus leading ultimately to a form of divorce.

4.15 p.m.

Lord Smith of Clifton: I should have thought it was not so much a divorce, but literally a legal separation. As I said on Tuesday, devolution implies that we cannot pick and choose on this and it has to be all of a piece. The appointment of county and magistrate's court judges are quite far down the chain. I should have thought that the Lord Chancellor was rather too far removed from Northern Ireland to have to approve such an appointment, so I oppose the noble Lord.

Lord Glentoran: I have a lot of sympathy with where the noble Lord, Lord Maginnis of Drumglass, is coming from, but it would be wrong to remove the whole schedule. I made a point in a previous sitting about where the Government's handling of the process had left the confidence of the Unionist Party in particular. The Government should take that on board.

Now might be a good time for a little more clarification on Clause 86 and the Government's intentions as to timing. As I understand it, that clause leaves the timing of the implementation of this Act open to the Secretary of State and allows him to do it piecemeal. He can select bits of the Bill to implement and other bits not to implement. It would be good to hear—if not now, perhaps when we return to the issue on Report, as I am sure we will—something of the Government's thinking in this matter. I cannot believe that, having gone through the whole Bill and passed it—as I hope that we shall, because I believe it is a good thing to pass the Bill once we have amended it somewhat—we would not then implement it in the fairly short term. If the noble Baroness is able to tell us more, I would be grateful, but if not I would certainly accept that we return to it on Report, when the Government can come forward with something of their thinking and planning in the timing of the implementation of various parts of the Bill.

Baroness Scotland of Asthal: As I said on Tuesday, when we met last, the devolving of these responsibilities will occur only when it is felt that the administrative structures and the parties are ready for such devolution. However, we have to prepare and we have to be confident. I believe it was the noble Lord, Lord Shutt of Greetland, who said last time that we also have to be optimistic. We are seeking to make clear that level of optimism in the drafting of the Bill.

The Lord Chief Justice will not be appointed as head of the judiciary until devolution of the justice function takes place. Schedule 5 will therefore not come into

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force until that time. Of course, separation still means that the marriage persists. It is only with divorce that one ends the legal and binding nature of the union. Separation can, on occasion, help married parties in particular to live in harmony more easily in the long term. I would like Members of the Committee to bear that in mind when we consider those provisions.

Schedule 5 specifies those functions that are currently exercised by the Lord Chancellor, which will be transferred to the Lord Chief Justice following the devolution of responsibility of justice matters to the Northern Ireland Assembly. The functions with which the schedule is concerned are not those involving the appointment of holders of judicial office, about which we had an interesting debate on Tuesday; rather, the functions are largely of an administrative character and are necessary for the efficient running of the courts. They are currently performed by the Lord Chancellor in his capacity as head of the judiciary. Following devolution of responsibility for the courts, the Lord Chief Justice will be the president of the courts of Northern Ireland and head of the judiciary, as is stated in Clause 12. Given that, we think it is right that the function specified in Schedule 5 should be exercised by him.

Perhaps it is worth stressing that Schedule 5 contains no role for any Northern Ireland Minister and so preserves the independence of the court administration. We are somewhat surprised that that provision is being opposed. We certainly agree that it is right that, post devolution, the Lord Chief Justice, as the statutory head of the judiciary in Northern Ireland, should be responsible for those matters. We do not see why, post devolution, the judicial functions relating to Northern Ireland should remain in Westminster. The Lord Chief Justice is the person most able to discharge them. I ask Members of the Committee to withdraw their objection to the amendment because we think that post devolution it is going to be of critical importance for the Lord Chief Justice to have that responsibility so that he can demonstrate a nexus between himself and the people with whom he will have to deal.

Lord Maginnis of Drumglass: The noble Baroness makes a powerful argument and I understand what the Government are trying to achieve. None the less, it is my sad experience that what governments set out to achieve and how they ultimately implement certain powers that they are given are entirely different.

During the talks leading up to the 1998 Belfast agreement, I heard the most wonderful assurances from Government, particularly in respect of disarmament. I do not wish to deviate from the debate but I have to say that the system that is now implemented in secret brings no reassurance to the vast majority of people in Northern Ireland. Some of us believe that disarmament has taken place but we have no way of reassuring a very disturbed citizenry in Northern Ireland of the Government's integrity in that regard. To return to our debate, I would believe that the assurances that the Minister gave were adequate if I could only believe that, down the road, certain

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unethical pressures will not be brought to bear on the Government to expedite matters. That would result in a system that was flawed because of that unseemly attempt to expedite matters. However, at this stage, I shall not press the issue, although it is my intention to return to this matter at a later stage.

Schedule 5 agreed to.

Clause 13 [Presiding county court judge]:

Lord Maginnis of Drumglass moved Amendment No. 105:

    Page 10, line 18, at end insert—

"(4) No appointment under subsection (1) may be made without the approval of the Lord Chancellor."

The noble Lord said: Amendments Nos. 106 and 107 are grouped with the amendment. Again, the proposal is very much in line with what I have said previously. It is our desire to ensure that the link between the judiciary in Northern Ireland and in the United Kingdom as a whole is retained. The amendments would ensure that no appointment under Clauses 13, 14 and 15 was made without the approval of the Lord Chancellor.

That approach would not confer on the Lord Chancellor or allow him to retain any powers that the Minister and the Government wish to devolve; rather, it retains the link or association. I believe that it also helps to retain the confidence of the people for whom this legislation has been drafted. I beg to move.

Baroness Scotland of Asthal: I understand why the noble Lord is wary about the change. As I said before, the change is an integral part of devolution and it is not going to happen until we are sure that the time is right.

The other assurance is that we are not giving the powers to the First Minister or the Deputy First Minister; we are giving them to the Lord Chief Justice of Northern Ireland. There is a unanimous view that each holder of that office in the past has held it with distinction and courage, has been robust and has operated the law without fear or favour to either side of the divide between the communities in Northern Ireland. We are going to entrust these very delicate administration functions to that senior legal officer and to no one else.

The Lord Chief Justice of Northern Ireland remains a member of the senior judiciary of the United Kingdom; that will not change. The close nexus and co-operation between the senior judiciary of the United Kingdom will remain. It is right to say that we would anticipate that the consultation and free flowing of information between those senior members of the judiciary will also remain. None of that will be expunged.

When we consider the institutions that have retained the confidence of the people of Northern Ireland throughout their troubled times, one gives us all pride—the judiciary has stood firm. It has stood above the partisan practices of others with courage and bravery, which has cost several judges their life. The judiciary did that without fear or favour. That is why the Government feel that there can be some confidence

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about entrusting those duties and the discharge nature of those duties to the Lord Chief Justice, if and when—I emphasise when—the powers are transferred.

Clauses 13 to 15 provide that the Lord Chief Justice must appoint one of the county court judges, resident magistrates and lay magistrates, to be presiding county court judge, the presiding resident magistrate and presiding lay magistrate with responsibility for the other judges or magistrates. Those clauses are not intended to take effect until after the devolution of responsibility.

The senior judge who knows judicial officers the more nearly will be the Lord Chief Justice of Northern Ireland. The noble and learned Lord the Lord Chancellor would place huge reliance on the recommendations, the advice and the indications given to him by the Lord Chief Justice, who will have intimate knowledge of the practitioners and the judges in that jurisdiction that the Lord Chancellor cannot properly and fairly be expected to have.

If I can put it colloquially, after devolution, there will be a transfer of responsibility to the person who knows the most about it, and that is all. We are not seeking to undermine or change in any way the independence, the robustness or the courage of any future Lord Chief Justice. We would not expect a person of a lesser calibre to replace the Lord Chief Justice. Members will also know that the Lord Chief Justice's appointment will not be devolved in the way in which High Court judges' appointments will be devolved to the Lord Chief Justice. There is a second security blanket.

Amendments Nos. 105 to 107 would impose a requirement on the Lord Chief Justice to obtain the approval of the noble and learned Lord the Lord Chancellor before making such appointments. One can just see what would happen. The Lord Chief Justice would make the recommendation and tell the Lord Chancellor who, he thought, was the most able to do the job. The Lord Chancellor would then take that advice and act upon it. Now, what will happen is that the Lord Chief Justice will speak to himself, if you like.

The noble and learned Lord the Lord Chancellor is, of course, able to make a different decision from that suggested by the Lord Chief Justice, but, in reality, the strength of the relationship and the trust between them would make it unusual for him to disagree with the Lord Chief Justice without very good reason. We can therefore be confident that we are not doing anything that will seriously impinge on the administration of justice in a way that would be to the disadvantage of the people of Northern Ireland.

It is of equal importance for all the people of Northern Ireland that the judges be above the difficulties and can deliver parity of treatment to all citizens. I reassure the noble Lord that that is the intent of Her Majesty's Government. We will be unshakeable on that. The changes involve investing trust that this is possible, but we will transfer the powers only when we are sure that it will work and are confident that it is safe to do so.

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4.30 p.m.

Lord Maginnis of Drumglass: The Minister has taken considerable pains to reassure me on this point. Once again, I follow her argument, although, if I wanted to split hairs, I could say that it was in some respects contradictory, in so far as she has held up, for example, the process that I wish to retain. It is not a new idea that the Lord Chief Justice of Northern Ireland brings forward recommendations to the Lord Chancellor. The Lord Chancellor and the Lord Chief Justice in partnership have succeeded over very difficult and dangerous years in maintaining integrity among the judiciary. I wish to acknowledge that. I join the Minister in recognising and paying tribute to the sacrifice that has been made by a number of people—not just judges—at other levels within the legal and judicial stratum of our society.

The Minister will understand it if I keep coming back to my desires in this regard. I come from Northern Ireland and have worked in another place on behalf of the people of Northern Ireland. She is absolutely right, as I have already acknowledged. The Lord Chief Justice makes recommendations with which the Lord Chancellor would seldom disagree, but none the less there is that relationship and linkage. However much reassurance I receive—and I accept the response of the Minister—I shall look to see where the people of Northern Ireland are getting less than they might reasonably expect as a region of the United Kingdom in terms of the linkages that exist. I have made my point and I shall have the opportunity to make similar points as we go through further amendments. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 13 agreed to.

Clause 14 [Presiding resident magistrate]:

[Amendment No. 106 not moved.]

Clause 14 agreed to.

Clause 15 [Presiding lay magistrate]:

[Amendment No. 107 not moved.]

Clause 15 agreed to.

Clause 16 [Complaints about holders of judicial office]:

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