Northern Ireland Bill
1. The Constitution Committee is appointed "to
examine the constitutional implications of all public bills coming
before the House; and to keep under review the operation of the
constitution". In carrying out the former function, we regard
our main task as being to identify questions of principle that
arise from proposed legislation and which affect a principal part
or parts of the constitution. This report draws to the attention
of the House constitutional issues arising from the Northern Ireland
Bill.
2. The bill has two aims which are of constitutional
significance. First, it seeks to provide an interim framework
for a Northern Ireland department and minister responsible for
police and justice ahead of devolution of those functions. Secondly,
the bill contains interim provisions arrangements for judicial
appointments and removals. The bill requires the Northern Ireland
Assembly to carry out reviews of both sets of arrangements by
1 May 2012.
Pre-legislative, legislative, and post-legislative
scrutiny
3. We have expressed the view in several previous
reports that, as a matter of general principle, bills which deal
with issues of constitutional significance should be published
in draft and be subject to pre-legislative scrutiny. There can
be little doubt that the Northern Ireland Bill seeks to legislate
on matters of constitutional significance. It amends the Northern
Ireland Act 1998, a piece of legislation described by the Appellate
Committee of this House as "in effect a constitution"
for that part of the United Kingdom.[1]
In addition to the devolution framework, the bill deals with judicial
appointments and removals, and the role of ministers in that process.
4. When the Lord Chancellor gave evidence to
the Constitution Committee on 28 January 2009, we asked him whether
there should be a constitutional convention that any bill which
carries constitutional change of any significance should automatically
be subject to pre-legislative scrutiny. Mr Straw told us that
"that will be the rule unless there is some emergency, which
I do not anticipate, which would mean that you have to rush the
whole thing through".[2]
5. In the present case, there has been no opportunity
for pre-legislative scrutiny of a draft bill by the United Kingdom
Parliament. Moreover, the bill has had an expedited passage in
the House of Commons.
6. Many bills relating to the Northern Ireland
peace process and devolution settlement have similarly been introduced
to Parliament on an emergency basis, with Parliament being called
upon to give legislative effect to negotiations: the Northern
Ireland Bill 1999 (containing provisions on devolution and decommissioning
of weapons following proposals put forward by the Prime Minister
and the Taoiseach); the Northern Ireland Bill 2000 (enabling the
temporary return to Northern Ireland of direct rule); the Northern
Ireland Assembly Elections Bill 2003 (providing for a 28-day postponement
of the Northern Ireland Assembly elections scheduled for 1 May
2003); the Northern Ireland Assembly (Elections and Periods of
Suspension) Bill 2003 (providing for the deferment of elections
for the Northern Ireland Assembly that were due to be held on
29 May 2003); the Northern Ireland (Monitoring Commission etc)
Bill 2003 (providing the Secretary of State with powers to exclude
Ministers from the Northern Ireland Executive); the Northern Ireland
Bill 2006 (providing for the recall of the Northern Ireland Assembly
for the purpose of electing an Executive); the Northern Ireland
(St Andrews Agreement) Bill 2006 (to make provision for preparations
for the restoration of devolved government); the Northern Ireland
(St Andrews Agreement) Bill 2007 (to modify the effect of the
Northern Ireland (St Andrews Agreement) Act 2006 by altering dates
from March to May).
7. This Committee is currently engaged on an
inquiry into 'emergency legislation' (broadly defined to include
all bills that receive a fast-track passage through Parliament).
As part of this inquiry, we are considering the reasons for and
the constitutional implications of the practice in recent years
of routinely giving bills relating to Northern Ireland constitutional
matters expedited consideration by Parliament. We will report
to the House in due course.
8. The present bill contains express provision
for what is, in effect, a kind of post-legislative scrutiny (though
this will not be carried out by the United Kingdom Parliament).
Schedules 1 and 6 require the Northern Ireland Assembly to reconsider
the continuing operation of the new department responsible for
policing and justice and to review of the arrangements relating
to judicial appointments and removals before 1 May 2012.
9. While we understand the political requirements
for progress to be made on the process of devolution of policing
and justice functions to Northern Ireland, it is not clear to
us that there is an emergency situation that in and of itself
justifies the departure from the principle that bills of constitutional
significance should be subject to pre-legislative scrutiny in
the United Kingdom Parliament. Nor is it obvious to us that circumstances
exist which justify the bill being put on a fast-track legislative
process in the House of Commons and the House of Lords. The bill
is, in effect, amending the uncodified constitution of the United
Kingdom and such changes should be made only after careful deliberation.
The role of the Prime Minister in judicial appointments
and removals
10. The bill sets out an interim framework for
judicial appointments and removals from office: schedule 6 requires
a committee of the Northern Ireland Assembly to review the operation
of the new framework before 1 May 2012.
11. The interim framework (reflecting current
arrangements) gives the Prime Minister the power of recommendation
in the appointments process to fill a vacancy for the most senior
members of the Northern Ireland judiciary—the Lord Chief
Justice of Northern Ireland and for Lords Justices of Appeal.
Before making such a recommendation to Her Majesty, the Prime
Minister is required to consult the Lord Chief Justice of Northern
Ireland or the senior Lord Justice of Appeal and the Northern
Ireland Judicial Appointments Commission.
12. The Prime Minister will also have a role
in any process to remove from office the Lord Chief Justice of
Northern Ireland, a Lord Justice of Appeal of Northern Ireland
and certain Northern Ireland High Court judges. Ultimately, such
senior judges may only be removed from office, on grounds of misbehaviour,
upon an address to Her Majesty from both Houses of Parliament.
The Prime Minister's functions would be to convene a tribunal
(after consulting the Lord Chancellor) to investigate the matter
and consider whether to recommend removal. The motion for such
an address would be made by the Prime Minister in the House of
Commons.
13. While we accept that there is a need for
ministers to be involved in both the appointment of and any steps
to remove a member of the senior judiciary in Northern Ireland,
we question whether the Prime Minister should have a role in these
processes.
14. In March 2008, the Draft Constitutional Renewal
Bill proposed removing the Prime Minister from the process of
appointments to the United Kingdom Supreme Court.[3]
There is a case for saying that, in the new constitutional settlement
that has emerged from the Constitutional Reform Act 2005, if a
minister within the United Kingdom Government is to be made responsible
for judiciary-related matters, that minister should be the Lord
Chancellor.[4] The Lord
Chancellor's constitutional role in relation to the rule of law
is expressly recognised by section 1 of the 2005 Act; he has a
statutory duty to "defend" the independence of the judiciary,
distinguishing him from other ministers whose duty is to "uphold"
that independence (section 3),[5]
and his distinct oath of office requires him to respect the rule
of law and defend judicial independence (section 17 of the 2005
Act).
1 Robinson v Secretary of State for Northern Ireland
[2002] UKHL 32, paragraph 11 (Lord Bingham of Cornhill). Back
2
House of Lords Minutes of Evidence taken before the Select Committee
on the Constitution, Meeting with the Lord Chancellor, 28 January
2009, Q 23 (unrevised transcript). Back
3
The Governance of Britain-Draft Constitutional Renewal Bill,
schedule 3 to the Bill (Cm 7342-II). Back
4
See generally House of Lords Constitution Committee, Sixth Report
of 2006-07, Relations between the executive, the judiciary
and Parliament (HL 151). Back
5
The Justice (Northern Ireland) Act 2002 similarly creates duties
to "uphold" rather than "defend" judicial
independence. Back
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