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Lord Rogan moved Amendment No. 113:

The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 115. With these simple amendments I wish to strengthen the oath and the affirmation. Every person appointed to an office specified under Schedule 6 must be seen to be upholding the laws, not simply acting according to the laws and the usages of this realm. I beg to move.

Lord Desai: Amendments Nos. 114 and 116 stand in my name. As I said before, the Committee on the Administration of Justice proposed them as good. I do not wish to speak to them at any great length. There was a good debate on the previous amendment. I speak to them to make it clear that there is another view out there. Because of that, we would be failing in our duty

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as legislators if we did not register that there is another view which says—even with all the good reasons given by my noble friend—the word "realm" is offensive to some people. For that reason, I believe that it could be replaced. I do not intend to press the amendment further but I put on record the fact that such an amendment would be desirable in the eyes of many people.

Lord Maginnis of Drumglass: I am almost beguiled by the Minister and the way in which she put her argument. She wishes for peace and harmony no more than I do but as we move further through the Bill, we will see an inconsistency in her argument that the Bill is intended to balance between the two interests. I do not want to go back over what has been debated. In relation to Amendments Nos. 113 and 115, I simply point out that if Government stick with the present drafting of the Bill, the phrase "according to" is weak. Unlike the word "upholding" it does not convey any permanency. To uphold the law is to prevent it from being weakened or taken away; it conveys a rightness about the law that "according to" fails to do. "According to" suggests something passive in terms of the law, not something that is proactive. One thing that has been important to us over the past 30-odd years is that the judiciary has been proactive in upholding the law under the most difficult circumstances. I therefore support my noble friend Lord Rogan in pressing the Minister to look at the amendment and to consider whether we could strengthen the legislation in that way.

I find myself at variance with the noble Lord, Lord Desai, once more. I suggest that whether or not the noble Lord presses his amendment, the word "realm" is appropriate. It conveys what is meant but "jurisdiction" does not. "Jurisdiction" is a flexible word; it may mean territory, but if it were enshrined in legislation it could be taken to mean to control, influence, sway. Hence, I would be bound to oppose anything which I felt weakened the legislation in this manner.

Baroness Scotland of Asthal: Much of what I will say about the amendments relates directly to what I have already said. If I may respectfully say so, the proposals involve tinkering in one way or another: "upholding" the laws and usages of the realm rather than acting "according to" them. I understand what the noble Lord says but the way in which the oath is currently phrased is perfectly plainly understood by all those who have to take it. One has to bear in mind the fact that persons who are going to be invited to take the oath will be judicial officers—judges in due course. There is no difficulty in understanding that the exercise of their duty has to be in accordance with and pursuant to the law of the land.

If one looks at other statutes, the definition of "according to" is clear, and "upholding" does not add anything to that understanding. I quite understand that the noble Lord may prefer it as a word. In fact, there is equality in relation to it.

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The current oath which we have discussed does not use any other word than that suggested here. Of course, the current oath is,

    "I swear by Almighty God that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, her heirs and successors according to law".

If one looks at what the judges have been doing to date, they have been doing it according to the law. We are simply replicating the wording that has been well understood in relation to that matter in this oath.

As I said earlier, the essence of that oath is precisely the same as the oath that has been proposed. I know that the noble Lord, Lord Glentoran, said that I did not directly deal with the point made by the noble and learned Lord, Lord Mayhew. In relation to the difference of the oath, the wording may be slightly different but the import is exactly the same. I see that the noble and learned Lord, Lord Mayhew, is nodding in agreement with that sentiment.

While I do not object to some of the words that have been suggested, there are dozens of potential ways of expressing the same thing. If we were agreed on the underlying aim, which we are, there is not much point in accepting drafting changes for change's sake. Therefore, we would prefer to stick to the wording of the Bill as it stands.

Amendments Nos. 114 and 116 also seek to amend the judicial oath and the judicial affirmation respectively to substitute for the word "realm" the word "jurisdiction". My noble friend Lord Desai will say that "jurisdiction" accurately describes the situation, that we are a realm and, therefore, "jurisdiction" implicitly includes Northern Ireland. We understand that nuances are important, and it is clear that there is, perhaps, advantage in using "realm" as opposed to "jurisdiction", although I understand that, as the noble Lord put it, that, in fact, accurately describes the situation.

For the same reason, we suggest that the formulation arrived at by the review balances those nuances carefully and appropriately. For that reason, too, we would say that using it in exactly the form suggested by the review is, perhaps, the better way forward. It reconciles the differing views that have been expressed and explored here. We invite noble Lords to think again about Amendments Nos. 113, 114, 115 and 116 and withdraw them.

Lord Rogan: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 114 to 116 not moved.]

Clause 19 agreed to.

Schedule 6 agreed to.

Clause 20 [Crown Solicitor]:

Lord Smith of Clifton moved Amendment No. 117:

    Page 13, line 35, leave out "may" and insert "must"

The noble Lord said: This amendment was tabled by my honourable friends in another place, but the guillotine fell before it was reached. It is just a probing amendment.

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The Bill states that the Crown Solicitor for Northern Ireland "must" make his services available to any Minister or department of the Government of the United Kingdom but only "may" make his services available to any Northern Ireland Minister or Northern Ireland department or any other public body or holder of public office. I am interested to know why there is a difference in the treatment of United Kingdom Government Ministers and Northern Ireland Ministers, and why the Crown Solicitor is given that discretion. I beg to move.

5.45 p.m.

Baroness Scotland of Asthal: The reason for the word "may", which makes it permissive, is that it would not otherwise be compatible with the core function of the Crown Solicitor, which is to provide legal advice and services to the Westminster Government in respect of Northern Ireland. The amendment could put the Crown Solicitor in an awkward position. If there were to be a dispute between the devolved administration and Westminster, he would have a conflict of interest. The current drafting makes it clear where his primary responsibilities lie, while allowing him to make his services available to the devolved administration as appropriate.

Lord Smith of Clifton: I thank the Minister for that lucid explanation, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 20 and 21 agreed to.

Clause 22 [Attorney General]:

[Amendment No. 118 not moved.]

Lord Williams of Mostyn moved Amendment No. 119:

    Page 14, line 15, at end insert—

"(2A) The Attorney General for Northern Ireland is to be funded by the First Minister and deputy First Minister, acting jointly.
(2B) The Attorney General for Northern Ireland may appoint staff, but subject to the approval of the First Minister and deputy First Minister as to—
(a) numbers,
(b) salary, and
(c) other conditions of service."

The noble and learned Lord said: Amendment No. 119 clarifies two matters. It is important that, in establishing the new Attorney-General, we avoid as far as possible any potential ambiguities. First, the amendment clarifies that funding for the new Attorney-General is to be provided by the First and Deputy First Ministers, who would fund the Attorney-General from money appropriated by Act of the Assembly. Secondly, the amendment clarifies that the Attorney may appoint staff, subject to appropriate approval, as to numbers, salary and other terms. Such staff would become civil servants on appointment. The amendment is in response to the Executive's view that

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the new Attorney will need such provision to carry out his duties. This amendment is therefore intended solely to clarify the position. I beg to move.

On Question, amendment agreed to.

Clauses 22 and 23 agreed to.

Clause 24 [Removal of Attorney General]:

[Amendments Nos. 120 and 121 not moved.]

Clause 24 agreed to.

Schedule 7 [Functions of Advocate General]:

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