The amendment would preserve the status quo, which requires the Lord Chief Justice's agreement to be sought and obtained before the sacking or suspension of any judge, as set out in the Justice (Northern Ireland) Act 2002. In the other place, clause 5 proved to be the most controversial clause. It was removed, but it was reinstated in Committee in this House.
The removal of a judge in England and Wales requires a resolution of both Houses of Parliament. Strangely, the Northern Ireland Act 2000 gives no role whatever to the elected Assembly, and places the key decision in the hands of the First Minister and the Deputy First Minister. In order to provide a proper check and safeguard for that novel constitutional model, the 2002 Act requires the Lord Chief Justice's agreement, which is, in effect, a veto over the process. That provision strikes me as eminently sensible, given our paramount concern for the independence of the judiciary. Now, only two years later, the Minister requests the removal of that veto. His request is based on neither a powerful argument that we got it wrong in 2002 nor experience gained from the system's bedding in. In Committee, he simply said that it is, in his view, "inconceivable" that the veto will ever be used, and that we should therefore take it away.
The Minister's request prompts two questions. First, if it is inconceivable that the veto will ever be exercised, why table a new clause in Committee to remove it? In Committee, the Minister responded to that question by stating that he favours tidiness in the law, that the veto is unlikely to be used, that it is redundant and that it should therefore be removed. Secondly, if the veto is inconceivable and wholly redundant, why was it given to the Lord Chief Justice only two years ago in the 2002 Act? The Minister replied that he did not know why because he did not serve on the Standing Committee for the 2002 Act.
The Minister's performance in Committee was so unconvincing that Mr. Trimble speculated that clause 5 might be based on special pleading:
"I want to put a specific and important question to the Minister: were any representations made to the Government on this change, and if so by whom? Where has this come from?"
The Minister replied:
"I will have to get back to the right hon. Gentleman."—[Official Report, Standing Committee D,
I do not know whether special information was imparted.
The hon. Gentleman is correct. The Minister promised to get back to me, and he treated that promise with the same seriousness that he treated his promise to give us the details of arrangements that we debated in Committee. In other words, he has not kept the promise—at least, not so far—and I would be surprised if he were to say anything more coherent than his previous contributions.
The matter is remarkably suspicious. Their lordships removed this key clause, which the Government think so important that they brought it back and forced it through Standing Committee. There has been complete silence on the rationale for clause 5, which prompts this obvious question: what are the Government trying to hide?
The procedure is novel, and I am prepared to admit that such a situation would be rare—it may never happen, and one hopes that it will not. It is admittedly unlikely that the Lord Chief Justice would seek to veto a decision largely based on the work of a commission set up by him, but we are not clairvoyant and cannot read what may or may not happen to that novel constitutional procedure in future. A veto was given to the Lord Chief Justice in the 2002 Act, and if its sudden removal is not based on an argument or experience, the Minister owes us a powerful explanation, which we have certainly not had.
As Mr. Swayne rightly said, clause 5 was removed in the House of Lords. The Government have not made an adequate case for changing the procedure, and clause 5 means that the involvement of the Lord Chief Justice in suspending or removing judges in Northern Ireland will be different from the involvement of the Lord Chief Justice in similar circumstances in England and Wales. Why change the system in one place, but not in another?
More profoundly, if the Minister is so determined to change a provision that was implemented two years ago, why did he not consult all the parties of Northern Ireland to find out what they think? I hope that he can reassure us that there has not been yet another unilateral deal with one side or another. I am sure that the Government are not foolish enough to pursue that path, which has almost always created the most enormous friction and frustrations in the peace process. As the hon. Member for New Forest, West rightly said, the 2002 Act is not yet in force, and we simply do not know whether the arrangements are effective.
In supporting the hon. Member for New Forest, West, I have two questions. First, what is the rationale for repealing an untried provision that was introduced since the general election and within the term of the current Administration? Secondly, if the Government believe that there is no need for the Lord Chief Justice to have such a veto, how do they explain the powerful rationale advanced for it when it was originally introduced? I am concerned, because if the Minister cannot give us a sound, logical explanation for the Government's approach, it unquestionably reduces our confidence in the changes that he makes.
He must understand that friction and tension will be generated if he proposes for no good reason that the arrangements in Northern Ireland diverge from those in the rest of United Kingdom. I hope that he can reassure us. Certainly, if he provides a powerful rationale for the change with some evidence, albeit circumstantial, I will not oppose it.
My hon. Friends and I support the amendment and accept and endorse the arguments advanced by Lembit Öpik. We believe that it was right that the Lords reinstated the status quo and gave the Lord Chief Justice the power of veto and we share the hon. Gentleman's incredulity that the Government have not explained why they are making this change. It is essential as a safeguard for the whole system that the Lord Chief Justice should have this reserve power to use in the most exceptional circumstances. We strongly support the amendment—to the point of a Division, if needs be.
We are getting used to this Government changing their mind from time to time. If the Prime Minister can alter over a Sunday lunchtime his view on the necessity of a referendum on the European constitution, we should not criticise too heavily this promising Minister for having changed his mind about the Lord Chief Justice's required agreement to the removal or suspension of a judicial officer. But it strikes me as odd, in the light of the debates on the 2002 Act that took place in Standing Committee. Mr. Browne, who has been transmogrified into the Immigration Minister—he has emigrated from Northern Ireland to an English Department, and good luck to him, as he is a Scottish Member—left behind a perfectly understandable piece of legislation in the 2002 Act, which allows the Lord Chief Justice a lock on the removal of judges. I seem to remember that the Government advanced a perfectly good case for the Lord Chief Justice having that reserve power, and I am not sure that anybody thought it sensible to remove it.
We are now required to accept that the Lord Chief Justice should merely be consulted. The Government have become famous for their ability to consult any number of people while not listening to them. I suspect that, if a judge proved inconvenient to the Northern Ireland Administration, whether under direct rule or devolved rule—in a political climate that perhaps we would not welcome at the moment, but which may come about—the Government would prefer it, politically, if the Lord Chief Justice were merely nodded to rather than having his views listened to. The Minister has a lot of explaining to do. If he can explain as well as he can promise, he will make a huge stride in adjusting the legal constitution of not only the United Kingdom, but Northern Ireland.
The amendment is not just a minor debating point but deals with a matter of acute seriousness. The removal of judges by a First Minister and Deputy First Minister is a matter of some political significance and should not be done lightly. Merely to consult the Lord Chief Justice, which does not import agreement or consent, is an insufficient safeguard to protect the integrity and independence of the judiciary. That is a simple point that was forcefully put by my hon. Friend Mr. Swayne. I hope that the Minister will be able to explain this volte-face, U-turn and change of view, which is a complete reversal of the policy that, barely 18 months ago, the hon. Member for Kilmarnock and Loudoun was happy to endorse and which we were prepared to accept on the Floor of the House and in Standing Committee.
I support what other hon. Members have said about this important matter. It is not a trivial point but goes to the heart of the central issue of the independence of the judiciary in Northern Ireland. We require a cogent explanation of the Government's proposal to remove the power of the Lord Chief Justice to veto the removal of a high court judge, given that they only inserted such a power two years ago. So far, such an explanation has been completely missing from all the debates in another place and in Committee that I have read. The Minister owes the House a clear explanation of why the Government are taking this radical step.
Clause 5, which is entitled
"Removal or suspension from listed judicial offices", states that
"In section 7 of the 2002 Act in subsection (5) . . . 'without the agreement of' the Lord Chief Justice is to be replaced by the phrase, "except after consultation with" the Lord Chief Justice. Will the Minister explain what would happen if consultation took place with the Lord Chief Justice and the most senior judge in Northern Ireland made it clear that he was not, for whatever reason, in favour of the removal of the judge in question? Although it is sincerely to be hoped that such a situation would not arise, is it really politically conceivable that the First Minister and Deputy First Minister would press ahead regardless?
The reasoning and logic that lay behind giving this power to the Lord Chief Justice in the first place was right and proper. The problem is not that the Government's argument for the change is flawed, but that they have advanced no argument at all. I look forward to the Minister's response, but if he has nothing cogent to say, my hon. Friends and I will be happy to join Mr. Swayne in dividing the House on the matter.
During the preparation of the Justice (Northern Ireland) Act 2002, every effort was made to ensure that the legislation contained a balance of provisions that built up the criminal justice system. In some instances, we added provisions that were supplementary to the recommendations of the criminal justice review. The Government are always being encouraged to check our policies against the recommendations of the review. On reflection, we decided that some of the provisions put in place by the 2002 Act are unnecessary. This is a case in point. As hon. Members have explained, the clause removes the requirement for the Lord Chief Justice's agreement to the removal or suspension of a person from a listed judicial office. The Lord Chief Justice will, however, be consulted on the removal. That change more closely reflects the recommendation of the criminal justice review.
Can the Minister refer me to the specific part of the criminal justice review—the exact language—that he is relying on? That would be helpful to the House.
Yes, I will shuffle rapidly through my papers and refer the right hon. Gentleman to that particular section. The criminal justice review recommended that the
"removal from office of a judge or lay magistrate should only be possible on the basis of the finding of a judicial tribunal constituted under statutory authority and convened by the First Minister and Deputy First Minister or the Lord Chief Justice, that a magistrate or judge was unfit for office by reason of incapacity or misbehaviour."
It does not, therefore, envisage a subsequent veto on the decision of such a tribunal.
Hon. Members have rightly pointed out that it would be unlikely that there would be circumstances that would lead to the setting up of such a tribunal. Let us also remember that such a tribunal would include two of the highest judicial office holders in the land. That would also mean that the body had been set up by the Lord Chief Justice, who would have agreed to the procedure to be followed by the tribunal.
I hope that the Minister is not trying to mislead the House by saying that the tribunal would be set up by the Lord Chief Justice. The 2002 Act provides that it might be set up by him, but it also provides that such a tribunal could be set up by the First Minister or Deputy First Minister, after consulting the Lord Chief Justice. It does not follow, therefore, that the Lord Chief Justice would set up the tribunal in all cases. Nor does it follow, as the Minister said earlier, that the tribunal would consist of persons holding high judicial office. The Act provides that it can consist of
"a person who holds, or has held" such office. That includes persons who might now be retired. The Minister needs to be more precise about this.
I thank the right hon. Gentleman for that. A Lord of Appeal in ordinary, the Lord Chief Justice or another senior judge would chair such a tribunal. There would also be a senior judicial member as well as a lay member. As I said earlier, the Lord Chief Justice would also determine the procedure of these removal tribunals. In those circumstances, there would be considerable involvement by senior members of the judiciary. As my colleague, Lord Filkin, said in another place:
"Can we conceive of a situation where the Lord Chief Justice would consider it right to say in that circumstance, 'No, I will have my way. The decision of that tribunal should not carry'?"—[Hansard, House of Lords, 3 February 2004; Vol. 657, c. 600.]
It is, therefore, legitimate to say that, in the difficult circumstances in Northern Ireland, no single person, however high or low, can appoint a judge, and that no single person can veto the removal of a judge.
Following the passage of that Act, we have reflected on the situation to see—as we are often pressed to do—whether matters are in accord with the criminal justice review and to examine whether the measures are appropriate. Here we have a situation in which senior members of the judiciary would be involved every inch of the way. I hope that the hon. and learned Gentleman will accept that we are dealing with a very unlikely set of circumstances. Given that that is the case, we are dealing with a situation in which the senior judiciary is involved right the way through the procedure. Would we therefore want to put the Lord Chief Justice in a position in which he effectively had a veto over the decisions of a tribunal in which he and the senior judiciary had been so involved? To some extent, the onus is on the hon. and learned Gentleman to argue why a single person as eminent as the Lord Chief Justice—any Lord Chief Justice—should have such a unilateral right of veto in those circumstances.
I used the opportunities provided by our deliberations on the 2002 Act to do a lot of arguing, much of which was against the Government's proposals. The Minister has already been exposed for placing false reliance on what he thought was in the criminal justice review and what he thought was in the 2002 Act. We are all entitled to know on what factors he has based this decision. It is no good simply saying, "It's unlikely", or "It's unthinkable." He has presumably applied his mind to the drafting of the Bill and has some cogent reason, which we would like to hear, for entertaining this volte-face.
I resent the hon. Gentleman's implication. I draw his attention to recommendation 104 in paragraph 6.136 of the review, which states:
"We recommend that removal from office of a judge or lay magistrate should only be possible on the basis of the finding of a judicial tribunal constituted under statutory authority and convened by the First Minister and Deputy First Minister"— as Mr. Trimble pointed out—
"or the Lord Chief Justice, that a magistrate or judge was unfit for office by reason of incapacity or misbehaviour."
There is nothing in that to imply or state that there should be a veto by the Lord Chief Justice within that procedure. There is no mention of a veto.
Of course, that recommendation is perfectly satisfied by the 2002 Act as it stands. The recommendation says nothing about such a decision not being revoked subject to the agreement of the Lord Chief Justice. Recommendation 104 has already been satisfied by the existing legislation.
I reiterate to the hon. Gentleman that the recommendation states that the
"removal of a judge or lay magistrate from office should only be possible on the basis of the finding of a judicial tribunal constituted under statutory authority", et cetera. Nowhere does the recommendation state that there should be a subsequent veto by the Lord Chief Justice. The hon. Gentleman is absolutely right to say that the 2002 Act introduced such a veto, but that is not sustained by the criminal justice review. I therefore fully accept the argument that we have changed our mind on this matter, but equally I can refer back to the review in saying that perhaps we were wrong in the first place.
The provision that the Minister is quoting does not assist him at all. In fact, if we look not only at the summary of the conclusions but at the paragraph from which the summary is drawn, we see that that paragraph does not go into the detail of the procedure at all. All that it says is that the removal should be possible only on the basis of the finding of a tribunal. That merely sets the initial basis on which to proceed. The review is entirely silent on the procedure thereafter. As the 2002 Act was enacted, it was entirely consistent with the recommendation, and the Minister has not given any explanation for this change. He cannot rely on this recommendation, because it contains nothing that has any bearing on this point.
I would never accuse my colleagues of having introduced inconsistent legislation. The right hon. Gentleman is right to say that the recommendation is silent in that regard, but, equally, the recommendations state that
"removal . . . should only be possible on the basis of the finding of a judicial tribunal".
That does not imply that there should then be a veto by another party who would therefore be able to override a tribunal that either a fellow Lord of Appeal or the Lord Chief Justice himself could have participated in or chaired.
Mr. Hunter was going to ask the Minister a question, which is this: if his defence is that no veto is implied, why does he think that that is a reason to take a power from the Lord Chief Justice? Why does he not equally accept that it is not implied that there should be no veto? It is an extremely weak argument to say that, because it is not necessarily stated that there should be a veto, he should remove the power. If that is what he is saying, is that the strategy that the Government will henceforth adopt for reviews—taking things out that are not explicitly included?
I am interested that the hon. Gentleman has now taken up mind reading, along with asteroid watching, as one of his occupations. We would of course be interested if his skills in mind reading had allowed him to read the mind of Mr. Kennedy, the leader of his party, as to whether he will remain as party leader. We would welcome the hon. Gentleman's contribution on that.
Clearly the gentleman is not for turning. Indeed, after hearing of injustices of the kind that the Minister is putting forward today, I am sure that my right hon. Friend will fight for as long as it takes to get us on to the Treasury Bench and to enable me, as Secretary of State for Northern Ireland, to right the many wrongs that we are observing this afternoon.
If the hon. Gentleman's leader is going to do that he will have to raise his game, compared with recent performances. We should return to the point, very substantially.
No doubt when the Minister was considering the change that the Government want to make he looked back at precedent, and no doubt he is aware of the precedent in this matter. To narrow things down, over the last 40 years, say, how many instances have there been of a judge being removed for either of the two reasons specified and what method was used?
My hon. Friend makes a powerful point, which of course reinforces the point that I made earlier: these are circumstances that are almost inconceivable or very unlikely in respect of there being a need to remove a judge. If we had reached those circumstances and had gone through the procedure as outlined by the criminal justice review—
I thank the Minister for giving way. I can well understand that nobody has the information as to how often this has happened, but surely the crucial thing is, if it happened how was it done? Surely that was part of the research that coloured the Government's mind when they were drawing up the original Act and this amendment to it. Can he say how these things were done previously? Only when we know that will we be able quantifiably to assess whether the proposal is an improvement.
The Minister will want to remember that we are not talking about the removal of a High Court judge, a lord justice of appeal or the Lord Chief Justice. The procedures for those are different, but tonight we are debating the particular procedure that deals with people holding lesser judicial offices right down through what the Minister claims to be nearly 1,000 minor appointments. While the removal of the Lord Chief Justice, a lord justice or a judge of the High Court is done wholly differently and has arisen only in most exceptional circumstances, I am sure that we could find examples where people have been removed from the minor appointments.
I thank the Minister for giving way, because it is essential that we know what the procedure was before. If we do not, we will have no way of measuring what is proposed against that procedure. I would have thought that, having introduced two criminal justice Acts, the information on how the matter was dealt with previously and through what procedure would be readily to hand.
I hope that I can enlighten my hon. Friend. The current grounds and statutory provisions for removal are as follows. The Lord Chief Justice, every lord justice of appeal and every judge of the High Court hold office during good behaviour, subject, as the right hon. Member for Upper Bann said, to a power of removal by Her Majesty on an address presented to Her Majesty by both Houses of Parliament. That is under the powers of section 13(1) of the Judicature (Northern Ireland) Act 1978.
County court judges and resident magistrates may be removed by the Lord Chancellor on grounds of incapacity or misbehaviour under section 105 of the County Courts Act (Northern Ireland) 1959 and section 11 of the Magistrates Courts Act (Northern Ireland) 1964 respectively.
Statutory officers—masters and district judges—hold office during good behaviour and may be removed by the Lord Chancellor on account of misbehaviour or inability to perform the duties of office. That is under sections 71(1) and 71(2) of the Judicature (Northern Ireland) Act 1978.
Members of the deputy judiciary may be removed by the Lord Chancellor, with the concurrence of the Lord Chief Justice and following an investigation conducted by a judge nominated by him, on the following grounds: misbehaviour, incapacity and failure to sit, attend training events or observe standards. Those are the procedures.
I am grateful to the Minister for that information. Does he agree that in each of those instances, until now, the people of the north of Ireland have had no say whatever in relation to this part of the legislation? Is not that the type of imbalance that the Bill is trying to redress?
That is partly the case, but of course it is also the case that the changes introduced under the 2002 Act involved more—the people of Northern Ireland and the judicial representatives in Northern Ireland. The real question that is being addressed here between the 2002 Act and clause 5 is how that balance is struck between those various individuals. As I said earlier, there is also a feeling that it is wrong for a single individual to have the right of appointment, or indeed of veto, over a dismissal within the system.
We are beginning to get closer to the heart of the matter. The current arrangements are that removal from the posts we are talking about is done by the Lord Chancellor on certain grounds. Of course, in such a situation the Lord Chancellor would be acting judicially, not politically. The provisions that the Government are including take the balance away from the judicial equivalent, which would be the Lord Chief Justice of Northern Ireland, and towards the First Minister and the Deputy First Minister. What hitherto has been a power resting in someone who would be acting judicially is being balanced towards people who would be acting politically. That again reinforces other aspects of the Bill, whereby the Government are foolishly opening the door to political influence over, first, the appointment and now the removal of judges.
I am sorry, but I cannot accept that argument from the right hon. Gentleman because the decisions on the removal or otherwise of a judge would be taken by a tribunal, which would involve senior members of the judiciary.
I am slightly surprised that the right hon. Gentleman is therefore impugning the integrity of members of the judiciary who would be sitting as a tribunal, who would probably include one of the lords justices of appeal, and who could include the Lord Chief Justice. Whether those are appointed by the First Minister and Deputy First Minister, or by the Lord Chief Justice, I hope that he was not impugning the integrity of those individual judges in taking a proper, fair and impartial decision, irrespective of who had appointed them to chair the tribunal.
Certainly, however, they would have enormous influence. It is really a question of whether their decision as members of the tribunal should stand, or whether the Lord Chief Justice should have a veto. That reflects nothing about the Lord Chief Justice. The issue is merely whether, within the system, one individual should have the right either to appoint unilaterally or indeed to prevent the dismissal unilaterally. That is the key question.
In view of the fact that there will be political influence in the appointment of the tribunal, and there is only a guarantee that one out of the three persons on that tribunal will be a person who holds judicial office, that was no doubt part of the reason why the Government in 2002 thought that it would be a useful safeguard to ensure that the Lord Chief Justice would have a power to look again at the matter. The decision of the Government to withdraw that safeguard is a matter of concern and we saw what view was taken of that in the other place.
We do not regard it as a safeguard in that sense but as a veto by one individual over the decision of a properly constituted tribunal in the extremely unlikely circumstances of such a tribunal being required. The right hon. Gentleman is right that that is the nub of the issue as to whether the House regards this as a necessary safeguard or as an unnecessary veto, and that due process would therefore require a properly appointed tribunal to undertake that decision, and for that decision not to be subject to an override by an individual, however eminent and just.
The Minister has obviously thought deeply about this matter. Can he give me one good reason why a judicial person should have a veto over the decision of others including the First Minister and Deputy First Minister in the north of Ireland? Secondly, can he give me another good reason as to why the judgment of a legal person should be better and more pristine than the judgment of political people, because the implication of Mr. Trimble is that that which is judicial is good and that that which is political is questionable?
I am not sure that I go along all the way with the argument that my hon. Friend advances in this regard. What I am saying is that the appointment of a tribunal with the involvement of the senior judiciary, in order to investigate and adjudicate on the question of whether a judge or magistrate is a right and proper person to be holding that office, must properly be made under judicial procedures and with the involvement of the senior judiciary. Once that tribunal has been appointed, either by the Lord Chief Justice or by the First Minister and Deputy First Minister, external or even internal political influence on the operations of that tribunal would be quite improper. That tribunal should come to its decision. That is not what we are deciding today, however; what we are deciding is whether that tribunal, when it has come to a decision, should be subject to a veto by the Lord Chief Justice. As I stress again, that in no way impugns this or any other Lord Chief Justice. I am talking about the basic principle.
For the Opposition, the occasion of a Government U-turn is always joyful. This afternoon has almost been as jolly an experience as last week's great Government U-turn, as we have watched the Minister squirm and try to find an explanation. He says that recommendation 104 requires that it will be possible for a judge to be removed only on the basis of the finding of a tribunal. That is true, and it is true now—it is only possible on the basis of a tribunal, as the procedure sets out in the 2002 Act. The Minister is being falsely pedantic in thinking that simply because that is a necessary condition, which it is, it rules out any other possibility. It is strange that he should be so coy about going beyond the provisions of the criminal justice review, in saying that the Government cannot take one step further than anything that is in black and white in that review. That was not the line that he took with respect to clauses 2 and 3, in which they have gone well beyond that.
I sense that the mood of the House is that we will not get much further on this issue tonight. I therefore wish to press the amendment to a vote.