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Nationality, Immigration and Asylum Bill

Lord Falconer of Thoroton: My Lords, I beg to move the Motion standing in the name of my noble friend Lord Filkin on the Order Paper.

Moved, That it be an instruction to the Committee of the Whole House to which the Nationality, Immigration and Asylum Bill has been committed that they consider the Bill in the following order:

Clauses 1 to 3,

Schedule 1,

Clauses 4 to 13,

Schedule 2,

Clauses 14 to 48,

Schedule 3,

Clauses 49 to 69,

Schedule 4,

Clauses 70 to 88,

Schedule 5,

Clauses 89 to 100,

Schedules 6 and 7,

Clauses 101 to 108,

Schedule 8,

Clauses 109 to 140,

Schedule 9,

Clauses 141 to 143.—(Lord Falconer of Thoroton.)

On Question, Motion agreed to.

Justice (Northern Ireland) Bill

3.9 p.m.

Report received.

Clause 1 [Guarantee of continued judicial independence]:

Lord Glentoran had given notice of his intention to move Amendment No. 1:


The noble Lord said: My Lords, Amendment No. 1 was instigated by the Law Society of Northern Ireland. This morning I re-read the Hansard report of our debate on the amendment in Committee. Having received no further arguments from the Law Society, I do not intend to move it.

[Amendment No. 1 not moved.]

Lord Maginnis of Drumglass moved Amendment No. 2:


    Page 2, line 1, after "Appeal" insert "or judge of the High Court"

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The noble Lord said: My Lords, this amendment seeks to ensure that the eight judges of the High Court, along with other senior judges, should not be appointed by the commission. I am disappointed that the Government have not relented on this. In Committee the issue was clouded with irrelevance with regard to who would or who would not become a Privy Counsellor. The noble Baroness, Lady Scotland, argued that because judges of the High Court are not Privy Counsellors, they could not be appointed in the same way as the Lord Chief Justice and the Lords of Appeal. However, when the point was put to her by the noble and learned Lord, Lord Mayhew, the noble Baroness admitted that only on a few occasions do the Lords of Appeal exercise their UK-wide responsibilities. If that is the case, then it does not appear to me to be relevant whether High Court judges are appointed in the same manner.

In Northern Ireland we face a difficulty in that we are living in a period of transition. We are in a hugely difficult situation in which the whole political process is finding it hard to bed down. The one element of life in Northern Ireland that has been consistent over the past 30-plus years is the judicial process. Yet it appears to us that this legislation may reduce the appointment of High Court judges to a farcical process; that is, something in the nature of Buggin's turn. That is because the First Minister and the Deputy First Minister are going to be put in the position where they have to strike a deal However, even today they are not natural allies, although because of the special nature of politics in Northern Ireland, they work together. But it is possible that the First and Deputy First Ministers may grow far further apart in years to come.

The best way in which I could describe what is likely to happen to the High Court judges is that they will be appointed by a form of sectarian rotation. If such a move were to be decided in your Lordships' House, then it is not something on which we could congratulate ourselves.

No matter where you go in Northern Ireland, a huge emphasis has been placed on the sectarian balance. But it is one that—certainly in recent times—has never emerged in terms of the appointment of High Court judges. We have sought all kinds of ways and means to resolve the problem. With regard to positions in the district and borough councils and, indeed, in the Northern Ireland Assembly itself, we have adopted the d'Hondt system. I am sure that the noble and learned Lord the Lord Privy Seal would not want to see such a system applied to the appointment of High Court judges.

It is essential for the Government to take this away and look carefully not only at whether we may be creating a climate of jeopardy for the judiciary or whether potentially we may be undermining the existing stability of the judicial process, but whether we may be introducing something that will have a knock-on effect, thus further destabilising those who are having foisted on to them the responsibility to agree to the terms of the appointment of High Court judges.

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I have set out my logical and serious arguments for this amendment. I do not want to spoil the case with the stark truth; that is, with my personal perception of what is going on. But throughout our consideration of the Bill, I sense that something may be encapsulated within it that is designed to weaken the traditional links between Northern Ireland and the rest of the United Kingdom and to provide a high-speed highway for links with the Irish Republic.

In respect of the judiciary and of judges of the High Court, I hope that the noble and learned Lord the Lord Privy Seal will do his best to set my mind at rest by assuring me that the provisions contained in the Bill are not simply the means by which to regularise a process that is now secretly under way; rather, that those in the Irish Republic both have been and are being consulted in respect of judicial appointments in Northern Ireland. We shall return to the matter at other points in the Bill where, for no good or accountable reason that I can think of, special consideration is to be given to bodies within the Irish Republic which are not helpful either in a practical sense or in any sense, given the disquiet that such matters can cause in Northern Ireland.

The Lord Privy Seal will do us all a service if he can let me know on which occasions in recent times consultation has been held in respect of the appointment of High Court judges either with government Ministers or perhaps, more discreetly, through the Law Commission. We need to know exactly what is the level of liaison and whether the form of appointment that has been outlined in the Bill before us is to facilitate it even further.

I wish to raise one or two other matters. In Grand Committee on 11th June, the noble Baroness, Lady Scotland, indicated at col. CWH13 of Hansard that the implementation of the Bill and its various elements would take place in stages. I do not wish to stray on to matters which will be discussed later, but my own experience suggests that there has been precipitate activity in the Northern Ireland Office and that matters which are only just at the consultation stage are being overridden by the implementation process. To put it in colloquial terms, someone is at his work.

I want to believe that what we achieve in terms of judicial appointments will be transparent and secure; that it will not be open to question or the kind of conflict that we have seen—I say this with some sadness—in terms of the appointment of the Chief Constable. That kind of conflict endangers everything that we in Northern Ireland have struggled to put in place. I cannot believe that that is the objective of the Bill. I know that your Lordships would not allow its objective to be the damaging or undermining of the Belfast agreement, which is still in its infancy.

But we have seen this happen from Weston Park to more recent events in Northern Ireland. We have seen a sleight of hand that is hugely disturbing for those of us who have to live with the situation in Northern Ireland. It is for that reason—returning to the issue of High Court judges—that I and most noble Lords want an assurance that the process will be transparent and

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not one which is so flawed that it will create further distrust and destruction in Northern Ireland. I beg to move.

Lord Mayhew of Twysden: My Lords, the noble and learned Lord the Lord Privy Seal was kind enough to write to all noble Lords who took part in the Grand Committee proceedings and to commend the quality of their contributions. We are all grateful for that. We recognise the noble and learned Lord's touch in so doing, and we are grateful for it.

High among the matters that were referred to by many noble Lords in the course of the Grand Committee proceedings was a recognition of the extraordinary quality of the performance of the judiciary in Northern Ireland over the past 30 years and more. There was no dissenting voice. I have far less experience than many noble Lords who took part but, nevertheless, I was able to say that in the years when I had responsibility as Secretary of State, and before that as a Law Officer, I never heard it seriously contended that the judges were other than wholly impartial and showed the highest degree of judicial integrity.

What I want to say in support of the noble Lord, Lord Maginnis, is limited to this: the High Court judges are the cornerstone of the judiciary. The compliments paid to the judiciary as a whole extended right across the board, to the resident magistrates as well as to the higher ranks of the judiciary, but the High Court judges are the cornerstone. They undertake the Diplock hearings, where they are the judges of fact as well as of law, sitting without a jury in cases where that is necessitated by what is still called "the emergency". Their jurisdiction extends to the highest and most serious offences and their powers of sentence extend to sentences of life imprisonment and extremely long finite sentences. They exercise the function of judicial review, which is always extremely important. I tend to think that that is more difficult in Northern Ireland, with its special circumstances, than elsewhere in the United Kingdom.

There is a character distinction to be made between the High Court judges and the remainder of the judiciary which should be reflected in the provisions in the Bill for their appointments. I do not endorse everything that has been said by the noble Lord, Lord Maginnis. I do not dissent from what he said latterly because I understand his suspicions. I do not advance what I am saying in support of him as an endorsement of his suspicions, but I warmly endorse his anxieties about the means of appointing the small body of High Court judges in Northern Ireland on the recommendation of the First Minister and Deputy First Minister acting together. The High Court judges should be separated from their jurisdiction.

We shall come back to this issue again in other amendments and there will be other opportunities to reflect on the Judicial Appointments Commission. But there is an important character distinction. If I may

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put it this way, you will know it when you see it. I have seen it for quite a long time. I therefore support the amendment.


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