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Baroness Crawley: My Lords, I beg to move that the House do now adjourn during pleasure until 2.30 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 2.23 to 2.30 p.m.]
Justice (Northern Ireland) Bill [HL]
Clause 4 [Appointment of Lord Chief Justice and Lords Justices of Appeal]:
Baroness Harris of Richmond moved Amendment No. 30:
- Page 2, line 41, leave out from beginning to end of line 3 on page 3 and insert—
The noble Baroness said: With regard to the appointment of the Lord Chief Justice and Lords Justices of Appeal, we believe that the published Bill has failed to meet the expectation raised in the updated implementation plan published by the Northern Ireland Office that the Prime Minister will appoint persons to these positions,
The review recommendation appears to give greater weight to the recommendations of the First and Deputy First Ministers. Therefore, I ask the Minister why that wording was not incorporated in the Bill given that the same commitment had also been given in the updated implementation plan? Moreover, it seems only consistent with the transfer of judicial appointments from the expected to reserved category of the Northern Ireland Act that the First and Deputy First Ministers would, after devolution, have greater powers in relation to such appointments. I beg to move.
The Deputy Chairman of Committees (Lord Elton): If this amendment is carried, I shall be unable to call Amendment No. 31 for reason of pre-emption.
Lord Glentoran: I have some inclination to support this amendment. However, I shall shortly move Amendments Nos. 31, 32, 33 and 34 which cover basically the same subject, as I understand it, although perhaps our arguments will be different. The points that the noble Baroness made in relation to previous documents, including the review, are all very relevant. I am a little surprised that there is no noble Lord on the Labour Back Benches to take part in this debate. However, that is not my business or the Government's. I support the noble Baroness's amendment, but I would not support it were she to press it as I wish to move my Amendments Nos. 31, 32, 33 and 34.
Lord Filkin: This amendment seeks to require the Prime Minister to base his recommendations to Her Majesty on the most senior judicial appointments on the recommendations of the First and Deputy First Ministers. That is how we interpret the amendment's wording and intent.
Under Clause 4 the Prime Minister will be required to consider the recommendations of the First and Deputy First Ministers before he makes a recommendation to Her Majesty. The First and Deputy First Ministers' recommendations will have been made after consultation with the Lord Chief Justice whose views will be made known to the Prime Minister. Our interpretation at least of the subsequent clutch of amendments of the noble Lord, Lord Glentoran, was that they pointed in the other direction from that, but we may have misinterpreted what the words,
I hope that the Committee will agree that the process as debated at Second Reading strikes a right and necessary balance by ensuring a central role for the First and Deputy First Ministers and the Prime Minister in a robust and fair procedure. The Prime Minister will, of course, take very seriously the recommendations of the two Ministers acting jointly. We must rely on him to act appropriately. One could not conceive of a Prime Minister lightly dismissing the recommendations of the First Minister and the Deputy First Minister. However, one would not need to be too Machiavellian in nature not to conceive of some circumstances in which he might wish to test, or have some further exploration or probing of, that process. In the circumstances in which we find ourselves, I believe that the discretion that is available to him is exactly right. For those reasons—while one would hope that we are always in a situation where he would be no more than a postman—I do not think that it is wise to remove the possibility of him having some discretion and influence on the process.
Lord Mayhew of Twysden: This is an interesting topic. I should be interested to know from the noble Baroness who will reply to the debate on her amendment what the grounds are for distinguishing between the situation in Northern Ireland in this regard and that in England and Wales. In England and Wales the appointment of the very senior judiciary is made on the recommendation of the Prime Minister to Her Majesty. If I have understood correctly the import of the noble Baroness's amendment, and as has just been said, so far as concerns Northern Ireland the Prime Minister would simply be a postman, in which case why have him or her there at all? Although one recognises that Northern Ireland is in many respects different from the rest of the United Kingdom, I do not think that there is a sufficient reason to distinguish between the constitutional arrangements in this regard. However, I should be interested to hear from the noble Baroness why she believes that there is sufficient reason so to do.
Baroness Harris of Richmond: I take the point that has been made. I reiterate that the measure concerns the recommendations of the First and Deputy First Ministers, but the Bill has diminished their role. I shall consider very carefully what the Minister said. We may return to the matter on Report. In the mean time, I shall reflect on what the Minister said.
Lord Glentoran: Will the noble Baroness tell the House whether the Minister's interpretation is correct—if it is, mine was entirely wrong—that the Liberal Democrat amendment views the Prime Minister solely as a postman?
Baroness Harris of Richmond: No, indeed, we do not consider that that is the case. As I said, I shall reflect on what the Minister said. We may return to the matter at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Glentoran moved Amendment No. 31:
The noble Lord said: The amendment is about the same subject: the appointment of the Lord Chief Justice. As the clause stands, as the Minister will appreciate having read the amendment, we are not happy. We have grouped the amendments because they all focus on Clause 4, which changes the arrangements for the appointment of the Lord Chief Justice and the Lords Justices of Appeal.
It would be profitable as we are in Committee to have just one debate on the shortcomings of the clause. The amendments are grouped so that we can debate our concerns under one heading. I shall speak to Amendments Nos. 31 to 34 and focus on three main points. Essentially, we are not satisfied that the appointment of the most senior judicial officials in Northern Ireland, has the necessary degree of consultation between appropriate parties. In the Bill the chain of consultation is as follows:
Subsection (3) provides for the Prime Minister to ask the First and Deputy First Minister for a recommendation about the appointment "in such a form" as he may specify, which he must consider before he makes a recommendation to Her Majesty the Queen.
Subsection (4) provides for the First and Deputy First Ministers to be obliged to consult the Lord Chief Justice or the most senior Lord Justice of Appeal before making a recommendation to the Prime Minister.
Subsection (5) says that the Judicial Appointments Commission must advise the First and Deputy First Ministers on the procedure they should adopt in formulating a recommendation to the Prime Minister.
Our amendments seek to alter that change of consultation in three principal areas. First, consultation with the Lord Chancellor should be obligatory—that follows the thesis that we have pursued throughout—both for the Prime Minister; and under subsection (3); and the First and Deputy First Ministers in formulating their recommendations under subsection (4). Amendment No. 31 would require the Prime Minister to consult the Lord Chancellor under subsection (3)—that is during his consideration of the recommendations put forward to him by the First and Deputy First Ministers. Amendment No. 32 would require the First and Deputy First Ministers to consult the Lord Chancellor as well as the Lord Chief Justice under subsection (4) before they make their recommendations to the Prime Minister.
My noble friend Lord Kingsland put forward the fundamental reasons why we think the Lord Chancellor, as the head of the judiciary and having taken the judicial oath, should be responsible for, or at least be part of the consultation process in, judicial appointments. That is, surely, nowhere more necessary than when consulting before the appointment of the Lord Chief Justice and the Lord Justices of Appeal.
Our second major point is highlighted by Amendment No. 33. Subsection (5) currently has the Judicial Appointments Commission give advice to the First and Deputy First Ministers on the procedure which should be adopted when making a recommendation under subsection (3). We are bemused as to why they should only give advice on procedure and not on potential candidates themselves. Surely the whole point of the JAC is to make judicial appointments. It should know better than the First and Deputy First Ministers and say from a less political and more impartial basis who should be put forward as worthy recommendations for such senior judicial positions. Amendment No. 33 would have them give advice, not only on the procedure to adopt for recommendations but, on the substance—perhaps on a short list of names of those who the Ministers consider to merit recommendation for the appointments.
Our third point follows that. We believe that there would be serious repercussions if the First and Deputy First Ministers put only one name forward to the Prime Minister under subsection 3(a). It would be hard for that not to be an overtly political decision, especially when currently the First and Deputy First Ministers are hardly likely to both support the same candidate. It might be a case, as happens in many other areas—in that little country, in my little country—of "your choice this time; my turn next time"—orange today and green tomorrow. The political implications of that are more alarming when one bears in mind that the Prime Minister might reject the one name put forward. I hope that he would maintain that right. Therefore, we suggest that in Amendment No. 34 at least three names be put forward in the recommendation by the First and Deputy First Ministers under subsection (3)(a) from which the Prime Minister must choose one.
That proposal would be in accordance with established practice, at least as it was under the noble and learned Lord, Lord Mackay of Clashfern. The respective merits of the judges recommended were explained and a ranking offered. The Prime Minister is not obliged to choose any of them under the amendment, nor should he be as a matter of statute, although normally he might do so. But he needs to be well informed of their perceived respective strengths and possible weaknesses, not merely to know who is the first choice of the First and Deputy First Ministers. I hope that I have made myself clear. I beg to move.
Lord Filkin: I recognise the importance of the issues, the clause and the amendments. We have understood, as have our lawyers, that the thrust of the Liberal Democrat recommendation in the previous amendment left no discretion for the Prime Minister. I would be pleased to hear if that was not their intent, but that is the meaning of the words to us. As I have signalled, the Bill comes between two more extreme positions than that which we have adopted in this part of the Bill. It may be helpful if I put briefly on record the process as it would operate in practice. I am
The first part of the process is essential—that before any vacancy arises the Judicial Appointments Commission would advise the First Minister and the Deputy First Minister on the procedure that they should adopt in formulating a recommendation to the Prime Minister on the appointment of the Lord Chief Justice or a Lord Justice of Appeal. So the procedure would have to be set out. The First Minister and the Deputy First Minister would have considered the advice of the commission and agreed, with the approval of the Prime Minister, the procedure that would be used. So, the commission would make recommendations to the First Minister and Deputy First Minister; they would consider a process; and that would then require the agreement of the Prime Minister, the First Minister and the Deputy First Minister before there was a vacancy.
The agreed procedure would be essential to ensure the overall integrity, fairness and transparency of the recommendations. One would expect that it would cover issues such as criteria; whether the process would involve applications or expressions of interest; the type of evidence on which criteria would be measured; the stage at which the Lord Chief Justice would be consulted; and the time that the overall procedure would take. Essentially, the process by which recommendations are to emerge, and the process for testing candidates—if that is not too formal a term—would have been set up.
Assuming that a vacancy arose, the Prime Minister would require the First Minister and the Deputy First Minister to make a recommendation to him in such form as the Prime Minister specified. That would allow the Prime Minister to ask for a single name, or perhaps two or three. The wording "in such form" would give discretion to the Prime Minister to decide on the number of names to be put forward and whether they were ranked. Again, we believe that the discretion provided by the Bill is right.
The First Minister and the Deputy First Minister then apply the procedure in reaching their recommendations. Before finalising them, they consult with the Lord Chief Justice and then submit their recommendations to the Prime Minister together with whatever views the Lord Chief Justice has expressed to them. Alternatively, the Lord Chief Justice may copy his views directly to the Prime Minister. As we signalled at Second Reading, we felt it right that there should be a direct route for advice from the Lord Chief Justice to the Prime Minister before he makes his decision.
The Prime Minister will then consider the recommendations and will no doubt have regard to the advice that the Lord Chief Justice gave to the First Minister and Deputy First Minister. The Prime Minister will then make a recommendation to Her Majesty, who will make the appointment. I apologise for taking time to explain the procedure, but it is a fundamental issue of concern to the Committee. It is our interpretation of the meaning of the clause.
I turn to the specifics. On consultation with the Lord Chancellor, the process will happen only when devolution has occurred. When devolution has taken place, the Lord Chancellor will not have a role with regard to Northern Ireland. No one can fetter the discretion of the Prime Minister—if he wants to consult with the Lord Chancellor, the ways of government give him plenty of opportunity to do so. But it is wrong in principle to put that on the face of the Bill for the devolution reasons I have given, and perhaps it goes into more detail than is appropriate. It is possible for the Prime Minister to consult if he wants to do so.
I make a similar point with regard to the second issue about the First Minister and Deputy First Minister. They have to consult with the Lord Chief Justice, as well they should not least because his views will be communicated to the Prime Minister before the Prime Minister takes a view. We cannot see why they should not also consult with the Lord Chancellor for the reasons I have previously given. The Lord Chancellor does not have a role in the post-devolution world about which we are talking.
The noble Lord, Lord Glentoran, then asked: why only advice on procedure and not on substance? The Judicial Appointments Commission will be giving advice to the First Minister and Deputy First Minister on the process by which the selection will be run. I do not know what advice they will give—who can?—but clearly there must be the kind of procedures one would expect to see when senior and skilled appointments are put in place. There must be a fair process for indicating the people who can apply, clear criteria and clear processes for testing those criteria. That is the nature of their advice.
The process might or might not involve members of the Judicial Appointments Commission. As the noble Lord, Lord Glentoran, says, they have great expertise in these issues, but it is left open to them what they advise and then the process the First Minister and Deputy First Minister agree. But of course the First Minister and Deputy First Minister can agree that process only if they agree it with the Prime Minister as well.
That may sound complex, but it is complex for a purpose. It tries to ensure that no one person has absolute power in this situation. We believe that is right. There are some health checks and balances on the process as a consequence.
On the final point relating to the Prime Minister—it would be the case if the amendment were carried—the Prime Minister would have the choice of three names. The Bill as it stands allows the Prime Minister to ensure that that happens if he wants it to. Clause 4(3) includes the words "in such form". That means that if the Prime Minister decides as much, he can at the beginning of the process specify that he wants the best three candidates, ranked or unranked, with reasons. Therefore, as the Bill stands, he is at liberty. He may always want that; he may never want that; he might want two names; or he might want more. He should have discretion, which is the thrust of the argument put by the noble Lord, Lord Glentoran.
The world changes and one cannot always envisage how and in what way. That discretion left with the Prime Minister may be wise and helpful. It allows him to do exactly what the noble Lord, Lord Glentoran, wants, but does not specify that something must always be the case if he judges it to be otherwise. That is our clear view of how the process would work and our suggestion on how it would intercept with the objectives raised by the noble Lord, Lord Glentoran. I respect those objectives.
I believe that I have covered everything and perhaps a little more. The clause as debated on Second Reading reflects Recommendations 75 and 85 of the Criminal Justice Review. I hope that that explanation has been helpful.
"(3) The Prime Minister shall make recommendations to Her Majesty concerning all appointments under subsection (1) or (2), based on recommendations made by the First and Deputy First Minister acting jointly, in such forms as the Prime Minister may specify."
"based on the recommendations of the First and Deputy First Minister".
Instead the Bill has diminished the role of the First and Deputy First Ministers by requiring the Prime Minister only to "consider" any recommendation for appointment made by the First and Deputy First Ministers. That falls short of the Criminal Justice Review recommendation on this point which the Government purported to accept without qualification in the first plan. The review has provided that responsibility for making recommendations for the appointment of the Lord Chief Justice and Lords
Justices of Appeal would lie with the Prime Minister, but on the basis of recommendations from the First and Deputy First Ministers.
"as to the substance of"
meant. Time will tell regarding that matter which we shall discuss later. If that were to be the case, I should suggest to the Committee that we are steering a middle course between the Prime Minister being no more than a postman—which I believe is the thrust of the Liberal Democrat recommendation—and how we interpret the recommendation of the noble Lord, Lord Glentoran; namely, that essentially the commission rather than the First and Deputy First Ministers makes the recommendation.
Page 3, line 3, at end insert ", and
(c) consult the Lord Chancellor"
2.45 p.m.
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