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Lord Mayhew of Twysden: That was a helpful explanation of the Government's understanding of the effect of the procedure. As the Minister said, at first sight it is slightly confusing because it starts at the end and works back to the beginning.

Perhaps I may make a textual point. The Minister said that the Prime Minister may require the recommendation of the Judicial Appointments Commission to specify one, two, three names or whatever. He says that that is achieved by the words,

"in such form as the Prime Minister may specify".

I find that confusing because on reading the Bill I asked myself whether the Prime Minister would be able to specify that more than one recommendation should be made. He has told us that that is the intention and no doubt his advice is that that is achieved by the use of those words.

That is confusing and I wonder whether the provision ought not to be spelt out more explicitly. It could be done by inserting another subsection such as,

"Whatever form the Prime Minister shall specify shall in any event relate to whether the candidate shall be alone or with one or two others".

But I am wondering whether it would not be better and safer for the Government to adopt the policy of requiring that in any event there shall be more than one candidate. That would remove from the Prime Minister the discretion to ask simply for a single candidate. My noble friend Lord Glentoran has touched upon the reasons that are peculiar to Northern Ireland.

There is much value in looking at the procedure adopted by the Church of England for the appointment of bishops. Lambeth sends two names to the Prime Minister and he can choose one or the other. They are listed in order of preference. He can say, "I don't like either of these. Try again". Under the settlement the Church achieved after a good deal of worry, it cannot send a single name.

Lord Filkin: Yes, it is our clear and firm view that the words,

"in such form as the Prime Minister may specify",

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leave it open to him to require one, two, three names or whatever. However, as this is an important issue I will treble check and will correspond with noble Lords. I have not received advice which puts doubt on that and signals a weakness, but it is critical.

Why not spell it out more clearly? If it is clear enough and the lawyers' advice is clear—and I shall confirm that in writing—there is no need to. Why not specify that there must always be two or three candidates? In essence, that sits on the delicate issue of how the Government are trying to work towards a devolved settlement. One would hope for a situation in which devolution works perfectly and that therefore the Prime Minister's role in the process would be minimal. There are good reasons for wishing that to be the case: the more that Northern Ireland is able to decide on its own affairs in ways that meet the tests of merit and probity that one would expect in a good society, the better. Therefore, there could be circumstances in which the Prime Minister was happy for one name to come forward.

There could be other circumstances when it was felt to be wiser to allow two or three names. In order to allow flexibility in seeing how devolution develops, it would be good to leave the element of discretion in the Bill as it currently is.

3 p.m.

Lord Glentoran: I thank the noble Lord for those explanations. They were very helpful. I am afraid that my brain is such that I shall need to study his comments more carefully in Hansard next week, and I may wish to return to this matter.

I have one question for the noble Lord: what happens before devolution? I thought that the idea of introducing the Bill now was that most of what it contains can be implemented without devolution. The noble Lord said that "in such form" the Prime Minister may make a request, and so on. I have tabled an amendment to try to ensure that that does not happen and that such a provision is not enacted before devolution. But if that amendment were not agreed to, and were the Bill to be enacted before devolution, can the noble Lord explain what would happen?

Lord Filkin: Yes. I should have expressed myself more clearly. The Bill will be enacted before devolution. Were there to be a vacancy—I hope and pray that that there is not to be one shortly—it would not be possible for the First Minister and Deputy First Minister to make a recommendation unless they were in place and devolution had occurred. That is what I was signalling. Unless they are in office and the Assembly has been reconvened and is functioning, there will be no one to fulfil the functions as set out in Clause 4.

Lord Glentoran: I hate to go into detail, but this is the right time. If there is no First Minister and Deputy First Minister and no devolution, but a Judicial Appointments Commission is in place—let us assume that there is a Lord Chancellor or that the Secretary of State at the constitutional department has taken the

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judicial oath—perhaps we shall need to have something in Hansard on how the Government see these appointments taking place.

Lord Filkin: Were there to be a vacancy for a Lord Chief Justice but devolution had not happened, the Lord Chancellor would make the appointment under the existing Act in the way that has just taken place.

Lord Glentoran: I thank the noble Lord for that, and I shall pursue that matter on Report, having read Hansard carefully. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 32 to 34 not moved.]

On Question, Whether Clause 4 shall stand part of the Bill?

Lord Maginnis of Drumglass: I had not intended to pursue this issue until I heard the Minister clearly make a statement that although, before devolution, we were previously promised that the commission would not be formed—it was not advised when the Criminal Justice Review took place. That is really too much. Within two years, the Government will go back on a promise made to this House when the 2002 Act was passed.

Lord Filkin: I may have misunderstood the noble Lord, Lord Maginnis, on that point. As I was seeking to signal, we are bringing forward the establishment of the Judicial Appointments Commission, so that these elements in the appointment of the Lord Chief Justice cannot take place until devolution has happened. In earlier parts of our discussion, I sought to set out why I thought that appointments to the Judicial Appointments Commission were in the interests of Northern Ireland in advance of devolution. That matter was dealt with before lunch. Under Clause 4, those do not operate unless devolution has taken place.

The provision in Clause 4 also brings the process making senior judicial appointments more closely into line with the Criminal Justice Review's recommendations.

Lord Maginnis of Drumglass: I am grateful to the Minister for clarifying that matter. If I misheard or misunderstood what he said to the noble Lord, Lord Glentoran, I apologise. I am reassured by what he has just said and I am grateful.

Clause 4 agreed to.

Clause 5 [Removal or suspension from listed judicial offices]:

On Question, Whether Clause 5 shall stand part of the Bill?

Lord Kingsland: So concerned are the Opposition about this clause, that I thought it appropriate to devote the whole of my wind-up speech at Second Reading to it.

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What is the motive behind this extraordinary change? It is not as though we have any evidence upon which to base it. Not only did the Act which the Government are now seeking to amend receive Royal Assent as recently as 2002; but we have as yet no experience whatever of its operation. In the absence of any convincing answer from the Minister, I am forced to conclude that the effect of the change will be to elevate political considerations as a factor in the dismissal of judges.

The 2002 Bill, already and inexplicably, removes the requirement of an address of both Houses of Parliament for the dismissal of newly appointed Northern Irish High Court judges—a requirement that has existed for more than 400 years. At least, however, under the 2002 Act, the First and Second Ministers will not be able to dismiss such a judge "without the agreement of the Lord Chief Justice"—a person himself only removable on an address of both Houses of Parliament.

Now, under the new Bill, the expression "without the agreement of the Lord Chief Justice" is to be replaced with the expression "except under consultation with the Lord Chief Justice". I ask the noble Lord the Minister: why on earth?

Lord Maginnis of Drumglass: Perhaps I may add my voice to that of the noble Lord, Lord Kingsland, on this issue. Again, I point out that less than two years ago the Government took the view—not blindly I hope, but with consideration—that it was appropriate to secure the agreement of the Lord Chief Justice before a holder of a listed judicial office could be removed or suspended.

Perhaps the Minister can say on how many occasions over the past 18 months the Lord Chief Justice has objected to, or refused to agree to, the removal or suspension of a holder of a listed judicial office. Has he displayed stubbornness and intransigence again and again? If the answer is no—as I suspect it is—then why is this clause in the Bill? If there have been, as I suspect, no such occasions of defiance or conflict as I have outlined, why are we here on this issue?

The noble Lord, Lord Kingsland, makes a very important point. To reduce the place, position and responsibility of the Lord Chief Justice as blatantly as does this element within the Bill is to elevate the opportunity—opportunities will, inevitably, be taken—for political considerations to gain dominance. With all sincerity, I ask the Government to look very carefully at the implications and the dire potential consequences of this change.

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