Justice (Northern Ireland) Bill [HL]
Lord Mayhew of Twysden (Conservative)
My Lords, I am so anxious to hear the answer from the Government Front Bench to the question my noble friend has posed that I hesitate to intervene. But the issue is so important that I am going to none the less.
The change which Clause 5 makes is extremely important. The case for it is not made out and I believe it ought to be vigorously rejected. It is said by the Minister, "Don't worry, there will first have to be a tribunal with two judges and one lay person. One will be a Law Lord. It must have recommended removal or suspension". My answer to that is that the Lord Chief Justice does not even have to have agreed to the establishment of such a tribunal; he has only to have been consulted about it. He may have objected to it and he will not necessarily sit on it. In fact, if he has objected to it, it is almost certain that he will not sit on it.
Nevertheless, as my noble friend said, under the 2002 Act, he was given a veto on removal or suspension of a judge. And that notwithstanding that the Northern Ireland Criminal Justice Review was already published so that it was known that the review,
"did not recommend a requirement for the agreement of the Lord Chief Justice".
The Explanatory Notes at paragraph 14 lamely state that the change in Clause 5 reflects more closely the recommendations in the review. Why then was it not in the 2002 Act, which succeeded the review? The answer given is that it is in the Hillsborough agreement. I suggest to your Lordships only that if it was in the Hillsborough agreement it should not have been, and the Hillsborough agreement cannot pre-empt what Parliament may decide in its wisdom.
I ask noble Lords to put themselves in the position of a judge if Clause 5 is carried. Only two years ago the judge would know that he was protected by the necessity for a joint resolution of both Houses of Parliament, like his counterpart in England and Wales. Then that provision went by virtue of the 2002 Act. But still the judge could not be removed without the agreement of his chief. Now he realises that that is to go. He may be dismissed only on the recommendation of a tribunal with whose establishment his chief may have disagreed, upon which he did not sit and with whose recommendations he disagrees.
What is the judge, in those circumstances, to make of this one-way progression of so-called reform? I offer this suggestion. He will calculate that the maintenance of a fail-safe system for judicial independence is now manifestly of less concern to the Government than that the so-called political process should be furthered by what is seen at Hillsborough to be expedient. In those circumstances, will he not be tempted to trim his sails accordingly? The very existence of such an obvious temptation, publicly perceived—as it will be—will serve to diminish public confidence in the independence of the judiciary. I suggest that it is not a temptation to which either the judiciary or the public should be exposed.