Clause 4 - Appointment of Lord Chief Justice
Justice (Northern Ireland) Bill [Lords]
3:15 pm
Mr Dominic Grieve (Beaconsfield, Conservative)
This is an important clause. It provides that there is system of consultation and recommendation for senior judicial appointments involving the First Minister and Deputy First Minister. That form of consultation is laid down in a statutory form. Our amendments require consultation with the Lord Chancellor at which time the First and Deputy First Minister might make any such recommendation. There must be good grounds for involving the Lord Chancellor in that process.
Looking back to our debate this morning I can see that if he ever disappears and is replaced by the Secretary of State for Constitutional Affairs, the argument might be different, but for the moment there is a Lord Chancellor. He is the head of the judiciary, and that also applies to Northern Ireland, where he has a role. In those circumstances, it strikes me as rather odd that he is excluded from the process as laid down in the clause. Indeed, I cannot but think that one reason why he was excluded is that when the Bill was originally drafted, the Lord Chancellor did not feature, so his alter ego and eventual replacement was named instead. As we still have a Lord Chancellor, he should be consulted, and I will be interested to hear the Minister's response on why he was either removed from the process or never included in the first place.
On the role of the Judicial Appointments Commission, I confess that I find subsection (5) odd and hard to follow. It is worth reading out:
''The Northern Ireland Judicial Appointments Commission shall give to the First Minister and deputy First Minister advice as to the procedure which, whenever they are required by the Prime Minister
to make any recommendation under subsection (3)(a), they should adopt for formulating that recommendation.''
What does that mean? If the advice is only procedural, will the commission be allowed to say only that the First Minister and the Deputy First Minister should sit down in a room one afternoon, decide whom they want and then send the recommendation off to the Prime Minister? If the advice is on anything more, it will concern substance rather than just procedure.
I would be mystified if there was no advisory role for the commission on the substance of who should be appointed. As one of the Bill's purposes is to remove the taint of political or sectarian bias, why should the commission not suggest to the First Minister and the Deputy First Minister the two or three people whom they should consider? After all, the commission will have the expertise, which the First Minister and Deputy First Minister are unlikely to have. That is not because of any specific failings, but unless they happen to be lawyers or are intimate with the legal profession, they may have great difficulty in working out the best people to appoint. Furthermore, one would have thought that if they were doing their job properly, they would informally consult the Judicial Appointments Commission anyway.
For that reason, the Minister should explain the role that the Judicial Appointments Commission will have under subsection (5). In doing that, he should bear it in mind that the commission will be well placed to provide the advice that the First Minister and Deputy First Minister will need in proposing appointments.
Finally, and perhaps most importantly, there is the question of what is being forwarded to the Prime Minister. The procedure envisages that one name will go to the Prime Minister for approval. I presume that the Prime Minister may reject the name and compel the First Minister and Deputy First Minister to reconsider the appointment. Is that sensible?