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Baroness Scotland of Asthal: My Lords, that is not the proper interpretation of Clause 5(3).
Lord Tebbit: My Lords, in that case I should be grateful if the noble Baroness would explain the proper meaning of that subsection.
Baroness Scotland of Asthal: My Lords, Clause 5(3) enables the First Minister and Deputy First Minister, acting jointly, to require the commission to add an extra person to that which needs to be appointed. It would be preferable if I could explore the issue further and come back with a fuller explanation. My interpretation is that the subsection would not enable the First Minister and Deputy First Minister to oblige the commission to recommend someone who would not properly be appointed in accordance with the normal procedures. I shall certainly come back to that.
Lord Tebbit: My Lords, perhaps I can fill in a little time while the noble Baroness gets some advice. It would seem extraordinary if we were asked to vote on the issue when the noble Baroness cannot explain the meaning of the clause and says that it does not mean what it appears to mean, but that she does not know what it means.
Baroness Scotland of Asthal: My Lords, if there is a vacancy, the First Minister and Deputy First Minister can require the commission to select a person, but it is for the commission to decide whom it recommends. The First Minister and Deputy First Minister cannot specify that they want, for example, the noble Lord to be selected. They can simply say that they want someone to be selected for the post. That is my understanding. They cannot identify the person.
Lord Mayhew of Twysden: My Lords, before the noble Baroness sits down—and perhaps to fill in a little more time—I have a further question. In Committee I asked whether she had any information about the extent to which Lords of Appeal and Lord Justices of Appeal in Northern Ireland had served in the Privy Council in an English jurisdiction. Not surprisingly, she was not able to answer at that time. She said today that the responsibility has not made great inroads into their time. I wonder whether it has made any inroads.
Baroness Scotland of Asthal: My Lords, there has been the potential for that, but it has not happened. We did a quick trawl on this. In 1997, the Lord Chief Justice of Northern Ireland was invited to sit as a Privy
Counsellor in a particular matter. Regrettably, his other commitments made it impossible for him to sit. Requests can be made, but it depends on whether judicial officers are free to sit on the Judicial Committee of the Privy Council on a particular date. The important issue is that the potential is there. They are invited to sit from time to time, subject to availability. As I said earlier, it may become more important to have someone with a proper understanding of the worries and concerns of Northern Ireland when the Privy Council comes to deal with devolved issues, as will happen in future. One can envisage that there may be a greater call on their time in the future than there has been so far. They will obviously sit as just one of a number.
Lord Morris of Aberavon: My Lords, I am grateful for that explanation. It is obvious that, in practical terms, they have so far not acted outside their jurisdiction. That is therefore not an argument that should unduly influence us. However, I am finding it difficult to follow the Privy Council argument itself. It is certainly an argument for making Lord Justices of Appeal Privy Counsellors. However, it is not an argument that is directly relevant in distinguishing the form of appointment of High Court judges who may be asked to perform within Northern Ireland precisely the same functions as those performed by Lord Justices of Appeal. I fear that the Privy Council argument is a complete red herring, or I may be unduly dim-witted and cannot understand it.
Baroness Scotland of Asthal: My Lords, I would never suggest that the noble and learned Lord is dim-witted or anything of that sort. On this occasion, however, I would say that he has perhaps failed to see the force of the arguments that we are putting forward. Perhaps I should make those arguments a little more clearly to assist him. As I said, the Lord Chief Justice has been asked on one occasion. Before 1997, however, previous Lord Chief Justices sat as Privy Counsellors. The noble and learned Lord wanted in particular to know what has happened since 1997, and that is our understanding of the situation.
I have emphasised that, in future, the Judicial Committee of the Privy Council will sit to rule on devolution issues, possibly including whether the Assembly's legislation is within the competence of the devolved Administration. I am sure that the noble and learned Lord, Lord Morris, will agree that it would be important to ensure that those sitting in the Privy Council on such matters have some expertise and knowledge of those matters. Whereas they currently form part of a pool of people who can be drawn upon to sit in the Judicial Committee of the Privy Council, subject to their availability, it is particularly important that those with particular knowledge are available to assist the Privy Council on devolution issues.
It is a distinction because of that important potential to sit on broader jurisdictional issues. It also precisely mirrors the line taken in Scotland. There is therefore a certain symmetry between the rules that we have put in place in one part of the United Kingdom and those
that we have put in place in another. I know that Northern Ireland has always been very anxious about parity of treatment. There is parity in the rules that we have put in place for Northern Ireland and for Scotland.
Lord Maginnis of Drumglass: My Lords, I hope that the noble Baroness will forgive me, but she has managed—perhaps because I do not have a legal background—to magnify the confusion that I felt when I arrived here today. Her argument on the role which Privy Counsellors may have to play in deliberating on devolved government and devolution issues seems to be self-contradictory. Is she saying that our High Court judges will not be Privy Counsellors although they will have to adjudicate on devolution issues in Northern Ireland? Or is she saying that judges who have a competence throughout the United Kingdom will be required to adjudicate on devolution issues in Northern Ireland? As she can cite only one occasion when a Lord Chief Justice has been required to serve as a Privy Counsellor, and no occasions on which a Lord Justice of Appeal has been required to do so, is it likely that the services of High Court judges will be called upon first? I am beginning to wonder whether the whole issue is an absolute and total red herring and has little to do with the issue that we are trying to resolve.
Baroness Scotland of Asthal: My Lords, I am happy to assist the noble Lord. The Judicial Committee of the Privy Council will sit from time to time to determine a variety of issues such as those affecting the Commonwealth and countries in which the Judicial Committee is the final court of appeal. Additionally, it will now have jurisdiction in relation to devolved matters. When the Judicial Committee of the Privy Council sits, it will be able to draw upon any number of Lord Justices of Appeal or Lords of Appeal in Ordinary who are fit to sit in the Privy Council. The Lord Chief Justice of Northern Ireland is one of those. When an issue relates particularly to devolution, it may be particularly important to ensure that the complement of judges sitting to hear that issue possess some knowledge of that subject and its history. Such judges may therefore be drawn from the pool of judges to sit on the issue thereafter.
High Court judges are not Privy Counsellors and cannot be called to sit as a member of the Judicial Committee of the Privy Council. All judges in Northern Ireland might have to decide devolution issues. However, the Privy Council is the final Court of Appeal on such issues. I hope that that explanation is a little clearer.
Lord Howie of Troon: My Lords, I think that we require a certain element of discipline here. As I understand it, we are at Report stage and the Minister should not be subjected to this type of harassment. There should be one speech after the Minister's speech and no more.
Lord Maginnis of Drumglass: My Lords, the answers that we have been given today are not sufficient to satisfy us. They are not sufficient in relation to the
Privy Counsellor issue, and they have not even attempted to provide the assurance I requested on the role of the Irish Republic. Consequently, and because the situation in Northern Ireland is currently in jeopardy, I feel that I would be failing in my duty if I did not press the issue to a Vote.3.59 p.m.
On Question, Whether the said amendment (No. 2) shall be agreed to?
Their Lordships divided: Contents, 90; Not-Contents, 158.
Aberdare, L.
Ackner, L.
Allenby of Megiddo, V.
Anelay of St Johns, B.
Astor of Hever, L.
Beaumont of Whitley, L.
Blaker, L.
Blatch, B.
Blood, B.
Boardman, L.
Bowness, L.
Brabazon of Tara, L.
Brightman, L.
Brittan of Spennithorne, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Butterworth, L.
Byford, B.
Caithness, E.
Carlisle of Bucklow, L.
Carnegy of Lour, B.
Chorley, L.
Coe, L.
Colville of Culross, V.
Cooke of Islandreagh, L.
Cope of Berkeley, L.
Cox, B.
Craig of Radley, L.
Crickhowell, L.
Cuckney, L.
Dean of Harptree, L.
Denham, L.
Dixon-Smith, L.
Eccles of Moulton, B.
Eden of Winton, L.
Elles, B.
Elliott of Morpeth, L.
Elton, L.
Fitt, L.
Freeman, L.
Gardner of Parkes, B.
Glentoran, L.
Gray of Contin, L.
Hayhoe, L.
Holderness, L.
Howe of Aberavon, L.
Howell of Guildford, L.
Kimball, L.
Laird, L.
Lane, L.
Lyell, L.
McColl of Dulwich, L.
MacGregor of Pulham Market, L.
Maginnis of Drumglass, L. [Teller]
Marsh, L.
May of Oxford, L.
Mayhew of Twysden, L.
Miller of Hendon, B.
Molyneaux of Killead, L.
Monro of Langholm, L.
Mowbray and Stourton, L.
Noakes, B.
O'Cathain, B.
Onslow, E.
Palmer, L.
Park of Monmouth, B.
Peyton of Yeovil, L.
Pilkington of Oxenford, L.
Platt of Writtle, B.
Rawlings, B.
Renton, L.
Roberts of Conwy, L.
Rogan, L. [Teller]
Rotherwick, L.
Seccombe, B.
Sharples, B.
Shaw of Northstead, L.
Skelmersdale, L.
Soulsby of Swaffham Prior, L.
Stevens of Ludgate, L.
Strathclyde, L.
Swinfen, L.
Tebbit, L.
Thatcher, B.
Trefgarne, L.
Trumpington, B.
Tugendhat, L.
Vinson, L.
Vivian, L.
Warnock, B.
Acton, L.
Ahmed, L.
Allen of Abbeydale, L.
Alton of Liverpool, L.
Amos, B.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Avebury, L.
Bach, L.
Barker, B.
Barnett, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Borrie, L.
Brennan, L.
Brooke of Alverthorpe, L.
Brookman, L.
Bruce of Donington, L.
Christopher, L.
Clarke of Hampstead, L.
Corbett of Castle Vale, L.
Crawley, B.
Davies of Coity, L.
Davies of Oldham, L.
Desai, L.
Dholakia, L.
Dixon, L.
Dormand of Easington, L.
Dubs, L.
Evans of Temple Guiting, L.
Evans of Watford, L.
Ezra, L.
Falconer of Thoroton, L.
Falkender, B.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Fearn, L.
Filkin, L.
Fyfe of Fairfield, L.
Gale, B.
Gavron, L.
Geraint, L.
Gibson of Market Rasen, B.
Gilbert, L.
Gladwin of Clee, L.
Golding, B.
Goldsmith, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Greengross, B.
Grenfell, L.
Grocott, L. [Teller]
Hamwee, B.
Hardy of Wath, L.
Harris of Richmond, B.
Harrison, L.
Haskel, L.
Hayman, B.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Holme of Cheltenham, L.
Hooson, L.
Howe of Idlicote, B.
Howells of St. Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hylton, L.
Irvine of Lairg, L. (Lord Chancellor)
Islwyn, L.
Jay of Paddington, B.
Jeger, B.
Jenkins of Hillhead, L.
Jenkins of Putney, L.
Jones, L.
Jordan, L.
King of West Bromwich, L.
Kirkhill, L.
Layard, L.
Lea of Crondall, L.
Lester of Herne Hill, L.
Lipsey, L.
Listowel, E.
Lofthouse of Pontefract, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L. [Teller]
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mar and Kellie, E.
Mason of Barnsley, L.
Massey of Darwen, B.
Merlyn-Rees, L.
Milner of Leeds, L.
Mitchell, L.
Morgan, L.
Morris of Manchester, L.
Murray of Epping Forest, L.
Northover, B.
Orme, L.
Ouseley, L.
Patel of Blackburn, L.
Peston, L.
Pitkeathley, B.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Prys-Davies, L.
Puttnam, L.
Ramsay of Cartvale, B.
Rea, L.
Redesdale, L.
Rendell of Babergh, B.
Rennard, L.
Richard, L.
Rodgers of Quarry Bank, L.
Rooker, L.
Russell, E.
Sainsbury of Turville, L.
Sandberg, L.
Sawyer, L.
Scotland of Asthal, B.
Scott of Needham Market, B.
Serota, B.
Sewel, L.
Sharp of Guildford, B.
Sheldon, L.
Shutt of Greetland, L.
Simon, V.
Smith of Clifton, L.
Smith of Gilmorehill, B.
Smith of Leigh, L.
Stallard, L.
Steel of Aikwood, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Temple-Morris, L.
Tenby, V.
Thomas of Walliswood, B.
Thomson of Monifieth, L.
Turner of Camden, B.
Uddin, B.
Walmsley, B.
Warner, L.
Weatherill, L.
Wedderburn of Charlton, L.
Whitaker, B.
Wigoder, L.
Williams of Crosby, B.
Williams of Elvel, L.
Williams of Mostyn, L. (Lord Privy Seal)
Resolved in the negative, and amendment disagreed to accordingly.
4.9 p.m.
Schedule 1 [Listed judicial offices]:
[Amendment No. 4 not moved.]
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