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Lord Morris of Aberavon: My Lords, I rise to express my concern at the Bill as it now stands. I read the proceedings in Grand Committee. I was not persuaded about the distinction between judges of the Court of Appeal and High Court judges in this respect. If I recall correctly, the point was made that a judge of the Court of Appeal is a Privy Counsellor. I did not attach any importance to that in that context.

The noble and learned Lord, Lord Mayhew, had much longer experience than I had as Attorney-General. I visited Northern Ireland frequently every few weeks for the purpose of meeting the judges and talking to them—I always had a meeting with the Lord Chief Justice—all in the interests of ensuring that I, as an outsider, knew a little of what was happening.

The problem—I hope that the Government will listen to this point—is that you have here a small core of very high quality judges. That is beyond argument. Secondly, they carry out their very difficult functions as High Court judges, sitting as judges both of law and of fact in Diplock cases. It was my function and that of the noble and learned Lord, Lord Mayhew, when he was Solicitor-General to take away from a number of people each week their right to trial by jury if they were alleged to be concerned with offences under the schedule. I was always conscious of the high quality of the judges who exercised that onerous responsibility as judges of fact and of law in criminal trials.

The problem that has not so far been canvassed is that judges of the Court of Appeal—to my astonishment—are substantially interchangeable with High Court judges. Judges of the Court of Appeal sit to hear ordinary trials that a High Court judge would normally hear. There is a very small number of judges of the High Court and above in Northern Ireland. It is sometimes difficult to find someone to hear a case: he may already have heard the judicial review, and then his function is to hear either the main trial or the trial in the Court of Appeal. Therefore, to my surprise, there is a much greater degree of interchangeability than one would find in an English or Welsh jurisdiction.

Likewise, High Court judges sit in the Court of Appeal, but it is the fact that it happens the other way round that causes me concern—although it is not unknown for even the Lord Chief Justice to take a trial from time to time in various parts of England and Wales, but it is unusual to say the least. Therefore, I ask the Government to consider carefully what is the real basis for this distinction. I am concerned, as I was when I read the debate that took place in Committee.

3.30 p.m.

Lord Molyneaux of Killead: My Lords, I want briefly to express my full support for the case made by my noble friend Lord Maginnis. The noble and learned Lord, Lord Mayhew, has calmly and accurately illustrated the enormity of what the Bill sets out to do. To illustrate the point, if the Bill were to

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apply in Great Britain to England and Wales, we would have the Prime Minister and the leader of the Conservative Party appointing and sacking Her Majesty's judges. However skilfully some may try to dress the matter up and to camouflage it, that is essentially the problem.

My noble friend Lord Maginnis is perhaps more hopeful than I. He said that there could be a change within 10 months at an Assembly election. The general view has been expressed by the news industry—I do not always uphold its views but there seems to be a conclusion across the board—that there will be a change of parties, so that without any reflection on the integrity of those who might be appointed, according to the polls we could have a First Minister and a Second Minister who were even more opposed than at present.

The problem is that they would have to act jointly. I can hardly see the Prime Minister and the Leader of Her Majesty's Opposition acting jointly on a matter as fundamental to British justice as the proposal in the Bill. The appointment of judges would simply become a matter of conflict between the First Minister and the Second Minister. As has been implied and stated, instead of judges being appointed on merit alone, we would end up with a bargaining situation between the two Ministers: "You get one, and I'll get one", without any regard to merit. That is the horrifying thing about this provision.

I feel strongly that High Court judges must not under any circumstances be made pawns in a political game, as the Bill proposes.

Lord Glentoran: My Lords, I am straightforward in my support for the amendment. My noble and learned friend Lord Mayhew and the noble and learned Lord, Lord Morris of Aberavon, have stated very clearly the seriousness of the amendment and of the situation of the eight High Court judges in Northern Ireland. There is a strong case for the Government to do some rethinking.

To touch on the politics of the speech made by the noble Lord, Lord Maginnis, this should be a straightforward technical Bill devolving power in regard to the judiciary and the Northern Ireland judicial system. But, unfortunately, too great a reference to politics has been introduced, unnecessarily, in the form of overstatements and over-actions in different parts of the Bill. A great deal of this was discussed in Committee. I have no intention at this stage of going over any of the arguments. I hope that the Government will realise that they are hearing arguments concerning the small print politics included in the Bill which need not have been there.

The Parliamentary Secretary, Lord Chancellor's Department (Baroness Scotland of Asthal): My Lords, I hope that I shall be able to give noble Lords greater assurance than we seem to have been able to manage to date. I say to the noble Lord, Lord Maginnis of Drumglass, that the Government have given these

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issues very careful consideration. We too want a transparent system which generates the trust that is necessary to make the Bill work.

These amendments were considered both in another place and in Committee. The intention is to give High Court judges the same appointment procedures and tenure as the Lord Chief Justice and the Lord Justices of Appeal. I regret to say that the Government have not been persuaded by the debate on the issue so far. Perhaps I may recite some of the reasons why.

First, the review was clear. The Judicial Appointments Commission should appoint all judges up to and including High Court judges. I do not depart for one moment from the warm endorsement given to the judges by all noble Lords in Grand Committee, and reiterated quite properly by the noble and learned Lord, Lord Mayhew. That was a unanimous view.

I agree with the noble and learned Lord, Lord Mayhew, that the High Court judges are one of the cornerstones of the judiciary and that they have had, to date, the character and distinction which mark them out for the proper role. All of those who have been burdened with that office in Northern Ireland have discharged the duty with distinction. These changes in the structure do not seek to change any of that. The case for excluding the most senior members of the judiciary from the remit of the Judicial Appointments Commission has not been made out, we respectfully suggest, for the High Court judges. We are looking to the future at what will be the next structure once devolution takes place.

The Chief Justice and the Lord Justice of Appeal are members of the Privy Council, as has been rightly noted by a number of noble Lords, not least by my noble and learned friend Lord Morris. But there is an important distinction. The Lord Justices of Appeal are members who potentially have responsibilities beyond Northern Ireland jurisdiction. This has not so far made much demand on their time, but they could be called on to act as Privy Counsellors in the future. That is perhaps more likely now, given the Privy Council's role in determining devolution matters. The issue is not simply whether they have done so in the past. They retain that potential and will do so in the future.

The Government agree with the review that it is appropriate to differentiate at this level of the judiciary. That line was taken with Scotland, where appointments and removals at the equivalent level are devolved. The amendments would remove that provision.

I know that there is concern. The noble Lord, Lord Maginnis, talked about Buggins' turn for judges. Buggins has never lived in the courts of our country and I do not think that he is going to get there now.

Clause 5 makes it plain that merit is the only criterion that will be operated. Subsection (2) says:

    "Only a person selected by the Commission may be appointed, or recommended for appointment, to a listed judicial office".

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Subsection (7) says:

    "The First Minister and deputy First Minister must, on being informed by the Commission of the outcome of the reconsideration of its decision, appoint, or recommend for appointment, the person selected by the Commission after the reconsideration".

Subsection (8) says:

    "The selection of a person by the Commission to be appointed, or recommended for appointment, to an office (whether initially or after reconsideration) must be made solely on the basis of merit".

If the First Minister and Deputy First Minister cannot agree on the commission's first recommendation for appointment, they must accept the commission's second recommendation, as set out in Clause 5(7). It is plain that the Lord Chief Justice will have a vested interest in making sure that the judges so appointed are of the highest possible calibre so that the high standards that have always prevailed in Northern Ireland will continue.

As I said in Grand Committee, the Lord Chief Justice of Northern Ireland currently makes a significant contribution to the deliberations on appointment, because he has the most intimate knowledge of Northern Ireland, its judiciary and those who seek proper judicial office. My noble and learned friend the Lord Chancellor makes no bones about the reliance that he places on the Lord Chief Justice's good judgment.

I hope that noble Lords agree that the structure that we have put in place for High Court appointments is robust. Not only that, it underlines the importance of merit continuing to be the only criterion that will determine office—not Buggins' turn or political interference, but real quality. That is what Northern Ireland needs and has always had. The Government are determined that Northern Ireland will continue to benefit from that.

Of course I understand the anxiety when we chart a new course, but we have to have a little courage and trust. The judiciary is well supported by a vigorous independent Bar and legal profession, which is drawn from and reflective of the community as a whole. Those good men and women have been trusted to date and the Government feel that they can be trusted in the future, together with a proper structure that will support them and enable them to come to the right decisions.

The noble Lord, Lord Maginnis, asked again about commencement. Clause 86 sets out the position succinctly. It says:

    "The preceding provisions of this Act (with the Schedules) shall not come into force until such day as the Secretary of State may by order appoint".

Subsection (2) says:

    "An order may appoint different days for different purposes".

We shall be able to look at the right time for these provisions and set that time for implementation when all is ready. I assure noble Lords that my noble and learned friend the Lord Chancellor and this

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Government are as jealous as anyone to maintain the integrity of the judicial system in England and Wales and, as it should properly extend, in Northern Ireland.

3.45 p.m.

Lord Tebbit: My Lords, before the noble Baroness sits down, can she explain Clause 5(3)? Does it mean that the First Minister and Deputy First Minister, acting jointly, can foist on the commission a candidate whom the commission did not want?

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