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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 downand perhaps to fill in a little more timeI 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
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
Lord Maginnis of Drumglass: My Lords, I hope that the noble Baroness will forgive me, but she has managedperhaps because I do not have a legal backgroundto 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.
Resolved in the negative, and amendment disagreed to accordingly.