Clause 105 — Removal from most senior judicial offices

Orders of the Day — Constitutional Reform Bill [Lords] — [2nd Allotted Day] – in the House of Commons at 3:41 pm on 1st February 2005.

Alert me about debates like this

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs) 3:41 pm, 1st February 2005

I beg to move amendment No. 3, in clause 105, page 46, leave out from end of line 17 to 'unless' in line 19 and insert

'or, if the Lord Chancellor is not a member of that House, by another Minister of the Crown at his request.

(4) No motion for the presentation of such an address may be made'.

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

With this, it will be convenient to discuss Government amendments Nos. 4 and 16.

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs)

These amendments are consequential on the removal of the requirement that the Lord Chancellor be a member of the House of Lords, which was debated in Standing Committee and agreed yesterday on the Floor of the House.

As drafted, clause 105 provides in that in the House of Lords only the Lord Chancellor may make a motion for the presentation of an address by Her Majesty to remove a senior judge in Northern Ireland.

Government amendment No. 3 provides that, where the Lord Chancellor is not a member of the House of Lords, he or she may request another Minister of the Crown to make a motion to that House for the presentation of an address to Her Majesty for the removal of a person from office as a senior judge. Clause 105 also provides that, before making such a motion in the House of Lords, the Lord Chancellor shall lay before that House a copy of the removals tribunal's report. Therefore, to make that consequential change, Government amendment No. 4 provides that that could be done by the other Minister making the motion.

Government amendment No. 16 makes similar consequential amendments to the post-devolution arrangements governing removal from most senior judicial offices in Northern Ireland. Those arrangements are prescribed in section 12B of the Judicature (Northern Ireland) Act 1978, as substituted by section 6 of the Justice (Northern Ireland) Act 2002.

These amendments are essentially consequential on yesterday's decision by the Committee to remove clause 2 of the Bill.

Photo of Patrick Cormack Patrick Cormack Conservative, South Staffordshire

The Minister rightly says that these amendments are consequential on yesterday's decision by the Committee, but he will concede that the Bill must return to the other place after our deliberations here. There will therefore be further opportunity for their lordships to reflect on what has been said in this House, and to pronounce upon it. If the other place reinserts clause 2, or something similar, and requires the Lord Chancellor to be a Member of the House of Lords, I hope that the Government will not insist on their proposals.

It is highly unlikely that we will have to wait until 2006 for a general election, but even so the Parliament Act cannot be invoked for this Bill, as it began in the House of Lords. The Government are likely to get most of what they want, even though the Bill, when it was first presented, was very rough. I therefore hope that they will not reject any insistence by the other place that the Lord Chancellor should be a Member of the House of Lords.

I should be grateful to hear what the Minister has to say about that.

Photo of Bill Cash Bill Cash Conservative, Stone

I am concerned about the reference in proposed section 12B(1) of the Judicature (Northern Ireland) Act 1978 to holding office "during good behaviour". What do those words mean? Our Parliament was established as a result of the deal struck when the Stuarts abdicated in 1688, and one piece of the resulting legislation was the Act of Settlement of 1700. That and other contentious issues in respect of who governs this country lay at the heart of the great historical events—the civil war, the driving out of James II, the battle of the Boyne, and so on—which collectively are known as the Glorious Revolution.

Another important question at that time was the extent to which judges determined the laws of the land, and the basis on which they did so. The question of whether a judge should be removed because he had infringed the principles of good behaviour were well understood at that time. I am glad to say that the principles that judges accept, certainly on matters of law, are adhered to, as far as we know, in every respect. However, the substitution of quando bene gesserint, which means during good behaviour, for durante bene placito regis, which means at the pleasure of the king, was a fundamental shift. The expression "at the pleasure of the king" was removed because it was clear that the king had such overriding control that he could remove a judge who had the temerity to disagree with the king's assessment of policy on, for example, the suspending power, the dispensing power and so on. The expression "during good behaviour" raises the question of misconduct.

At the end of the Bill there is an interesting amendment that has not yet been discussed. I cannot put my finger on it straightaway, but I would like the Minister to explain the amendment to section 11(3) of the Supreme Court Act 1981 and the way in which misconduct will be dealt with. The Minister may know what I am referring to, but I realise that he may not have a clue.

The significance of the amendment is simply that misconduct in the context of judicial office would today be considered to be corruption, conflict of interests and so on. Not so long ago, things got a bit tricky when a question arose as to whether a judge had a conflict of interests because of his interest in a charity, but I will not go into that now. Generally speaking, I am entirely satisfied that our judges, whether here or in Northern Ireland, are of impeccable character and would not infringe the rules of misconduct, corruption and so on.

Misconduct, under the original proposition of "during good behaviour"—I shall not repeat the Latin for that—was well understood at the time as going much further. It was part of the settlement in 1700 that judges would have regard to the importance of maintaining the stability of the constitution and to the political and constitutional principles underpinning the deal.

What would happen under clause 105 if the question arose—we sincerely hope that it would not— of removing the Lord Chief Justice, Lords Justices of Appeal, judges of the High Court or any other judges who fall within the rubric? Can we be certain that the question of what constitutes good behaviour is clearly understood? We could thus understand from the Minister that good behaviour is not confined simply to what we might generically describe as corruption, which I am certain would not be the case, but that the matter is much wider and involves questions relating to the Oath of Allegiance or matters of that kind.

We might end up in a situation where a judge decided wilfully, or perhaps deliberately—there are various gradations—that the decisions reached by, for example, the European Court of Justice had overriding power of interpretation as compared with the rules that we understand to apply. We discussed them yesterday, and I believe that the Government have accepted the point that I have been making for several years: at the end of the day, the judges of this country are under an obligation, under our constitutional doctrines in the House, to give effect to the latest, inconsistent, clearly and unambiguously expressed Act of Parliament, which would say, for example, that notwithstanding the European Communities Act 1972, we would legislate in relation to immigration and asylum, thereby immediately removing all the current controversies. I should be grateful if the Minister addressed that question—[Interruption.] I shall be glad to give way to my hon. and learned Friend Mr. Garnier if he wants to intervene.

Photo of Edward Garnier Edward Garnier Conservative, Harborough 4:00 pm, 1st February 2005

I wanted to intervene and then thought better of it, but I shall now take the opportunity my hon. Friend offers me.

It seems to me that clause 105 deals exclusively with the judiciary of Northern Ireland. No doubt Mr. Trimble will help us further on that point. I was under the impression that justice—the appointment of judges and so forth—had been devolved to Northern Ireland and indeed may have been suspended. Again, the right hon. Gentleman may be able to help us. That is why I thought better of my intervention. My question was unformed so I thought it better not to put it, but if my hon. Friend Mr. Cash would like to continue his remarks without concerning himself with mine, I shall take advice and either keep quiet or make another intervention in due course.

Photo of Bill Cash Bill Cash Conservative, Stone

I am grateful to my hon. and learned Friend. He touches on an important point. As I said yesterday, with regard to clause 4 and devolution in Scotland, it is unequivocally the case—certainly according to the best constitutional authorities; Bradley and Ewing is a good example—that if we want to legislate in Westminster as the United Kingdom Parliament, irrespective of the passage of the Scotland Act 1998, as a matter of constitutional law, we have the right to do so. There is no doubt of that. The same applies in respect of Northern Ireland, perhaps even more so. I defer to Mr. Trimble on that point.

This is an important and serious matter, because judges, whatever their eminence and in whatever part of the United Kingdom we are talking about, are governed by the same criteria. The question of misconduct in respect of clause 105 is specifically related to Northern Ireland, but without prejudice to the fact that the United Kingdom Parliament has overriding jurisdiction. The tribunal with responsibility for considering removal, which we shall discuss later, has to go through a series of judgments, which include judgments made by persons of equal standing.

I need not elaborate further. I invite the Minister, if he would be good enough, to give us a proper definition of the words "during good behaviour" in this context. After all, if we are dealing with what the Prime Minister and the Lord Chancellor are likely to do and we then go through the motions of tribunals and the rest, it would be at least important to know that the words "good behaviour" are understood not merely in terms of criminal activity, corruption or whatever, but in relation to dealing with the fundamental question of who makes the final judicial decisions—the note on which I left the Minister last night in the final moments of our debate on the rule of law.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

In noting what the Government intend to do in respect of these amendments, it might be helpful if the Minister could also amplify the wording of proposed new section 12B on tenure of office. I accept that this is presumably derived from past example, but I am surprised that the only person who could move the motion for the presentation of an address to Her Majesty is the Prime Minister in the House of Commons or, under the old scheme, the Lord Chancellor in the House of Lords and, under the new scheme, his substitute.

Are we to understand therefore that no other Member of the House can table or move such a motion of their own volition, particularly in the other place? If that is the outcome, I am startled. I always understood that such questions were ones for Parliament to determine. Clearly, it may be appropriate for Ministers to trigger the process, but it is not designed to exclude the right of Members of Parliament to move such motions.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I see the Minister is nodding, so he will doubtless be able to provide me with complete reassurance, but I find the wording of proposed new subsection (3) slightly surprising in those circumstances because it appears to exclude that possibility even if that may not be its intention. I should be grateful to the Minister if he would deal with that.

As for the rest of the amendments, the Minister will be aware why we wish to preserve the office of Lord Chancellor, but I fully accept that such amendments are necessary, as that office will disappear at the end of the process. Doubtless, if the other place decides to reverse the amendments that the Government have tabled here, the Minister will have to reconsider the matter.

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs)

Sir Patrick Cormack said that he regretted decisions that we took earlier in Committee and postulated the hypothetical scenario in asking what would happen if the other place were to reintroduce clause 2 on the requirement for the Lord Chancellor to be a Member of the House of Lords and, if it were to do so, whether we would have to reverse these consequential changes. He will not be surprised to hear me say that, as with most hypothetical scenarios, that is entirely hypothetical and it would be premature for me to suppose that that will be the consequence of the other place's deliberations on our amendments, which we made with good grounds and a strong majority opinion in the House. I hope that the other House would respect the view of the elected Chamber on that matter, so it is not unreasonable that we have introduced these consequential Government amendments, which could allow someone other than the Lord Chancellor, if the post holder sits in the Commons, to move motions for the removal of judges in the other place.

Mr. Cash asked a wider question that seemed to suggest that we were broadening the debate from simply discussing these Government amendments. The definition of good behaviour in clause 105 is not technically touched on by these Government amendments, but I am happy—if it is in order, Mrs. Heal—to answer his points since it appears that we may be having a substantive debate at this stage. He asked about the definition of good behaviour, good conduct and so forth. I am sure that he has more historical knowledge about the origin of many of those phrases. I gather that, around the time of the Glorious Revolution of 1688, there was a change from judges holding their offices at the king's pleasure to them doing so during good behaviour. I do not think that the phrase "good behaviour" is defined elsewhere in statute, but it is commonly understood. For example, the last judge who was removed for misbehaviour was apparently a circuit judge who was convicted of smuggling, although I am not sure when that happened. A clear breach of the judicial oath would fall under that category, but decisions must be based on each specific case.

Photo of Bill Cash Bill Cash Conservative, Stone 4:15 pm, 1st February 2005

I am sure that the Minister is not dodging the question, but he is not addressing it. I am well aware of the point about corruption and criminal activity, but the point that I am trying to get out of him—I am insisting on asking this time—is whether the expression "during good behaviour" covers deliberately deciding to adopt a source of interpretation that is inconsistent with the conventions of our constitutional arrangements in this Parliament and this country. Does he understand what I am saying? If he does not, he will have to come back to the matter.

Photo of Patrick Cormack Patrick Cormack Conservative, South Staffordshire

The Minister had better write my hon. Friend a letter.

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs)

It might have been appropriate to table an amendment on the matter, but I do not think that the inconsistency or contradiction that the hon. Member for Stone presupposes exists.

Mr. Grieve asked whether any Member could move a motion for the removal of judges, but I remind him that we are debating the amendments in the context of clause 105, which relates specifically to Northern Ireland. A feature of the settlement in Northern Ireland means that the measure will exclude Members from having the right to move an address in relation to judges in Northern Ireland, but we are not introducing such a provision for judges in England and Wales. It will still be open to any Member to move a motion regarding such judges in theory, but if a motion were moved on behalf of the Executive, that would clearly be the responsibility of specific Ministers in circumstances described elsewhere in the Bill.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I am aware that we have set up different structures for Northern Ireland, some of which are dependent on devolution coming into operation. Parliament will continue to have direct responsibility for the Northern Irish judiciary in the interim, so I am worried to learn that it will not be possible for any Member of the House to move a motion because that will be completely at the Executive's discretion. That is a worrying state of affairs and the Government should rectify it.

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs)

I am sure that the hon. Gentleman recognises that the wider features of the Northern Ireland settlement mean that arrangements for Northern Ireland are different from those for England and Wales and I am sure that we will discuss such matters when we consider other clauses. We have set out our proposals in clause 105, but the Government amendments do not necessarily impinge on the point that the hon. Gentleman raised.

Photo of Bill Cash Bill Cash Conservative, Stone

I am sorry to be so persistent on this point. As my hon. Friend Sir Patrick Cormack suggested, perhaps an exchange of letters would be the simplest way to deal with the problem. I refer the Minister, as a starting point, to page 372 of the important tome "Bradley & Ewing", which sets out the issues clearly. It says:

"assuming that there was no intention to alter the effect of the Act of Settlement by the revised wording now contained in the Supreme Court Act 1981, it is theoretically possible for a judge to be dismissed not only for misconduct, but for any other reason which might induce both Houses to pass the necessary address to the Crown".

I am especially interested in the words

"but for any other reason" because there is not a question simply of misconduct. These are weighty matters and, if I may say so, this is an example of the deep waters into which we are getting. The Bill is setting out in statute provisions that have been covered by profound constitutional arrangements that have developed over centuries. It does not follow that every single thing that has been done in the past was right, but the Bill is not being handled in the correct way.

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs)

I understand the hon. Gentleman's point. As he has done in several debates, he brandishes his copy of "Bradley & Ewing" and keeps his finger at page 372—he is very attached to that weighty tome. Perhaps correspondence might be a good idea, although my understanding is that Parliament is sovereign in all matters on which it legislates. That principle should overcome some of his concerns.

We have departed somewhat from the Government amendments. I remain of the view that they are robust and valid and hope that the Committee will accept them.

Amendment agreed to.

Amendment made: No. 4, in clause 105, page 46, line 25, leave out from 'and' to end of line 26 and insert

'a person making such a motion in the House of Lords shall lay a copy of the report before that House before making the motion.'.—[Mr. Leslie.]

Question proposed, That the clause, as amended, stand part of the Bill.

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party

I rise to comment briefly on the clause in the hope that the Minister will explain the scheme of things. Having only glanced at the legislation, my understanding is that the provisions of clauses 105 to 107, which apply to removal from senior judicial offices in Northern Ireland, will take effect until such time as the Justice (Northern Ireland) Act 2002 comes into operation, whereupon they will be replaced by the provisions of sections 6 to 8 of that Act. I think that that is what is intended.

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party

I see the Minister nod, which is rather disappointing for me, because when I first read the clauses, I thought to myself, "Oh, goody—they've written the First Minister and the Deputy First Minister out of the process." Under the 2002 Act, the First Minister and the Deputy First Minister have a significant role, but it is a role with which I was never comfortable, which is one of the reasons why I opposed the relevant provisions of the 2002 Act and the Justice (Northern Ireland) Act 2004.

The provisions on the appointment and removal of judges will be bad in practice. They open the door to far too much political influence on the process. The present system, although superficially it appears to involve politicians in the administration of justice, works well in fact, whereas the Government's proposals, which are allegedly designed to remove the appearance of political interference, will in fact result in greater political interference. That might not be the intention. Although the intentions behind the legislation may be good, I think that the consequences in almost every case will be a deterioration in the quality of the system.

I rose simply to make sure that my understanding of the legislation is correct. I am sorry to find that it is and that my hope that the First Minister will no longer be involved is to be dashed.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I am sorry to return to an issue that I raised during debate on amendments to the clause, but until our debate started, I had not picked up on it, and nor, I suspect, had the Minister. When I asked him whether the clause would fetter the right of a Member of either House to move a motion for the removal of a judge, he initially nodded assent, but was then handed a note from the Box saying that that was indeed the position for England and Wales, but not for Northern Ireland. That makes me anxious. I fully appreciate that there is a devolution settlement in Northern Ireland. When it is introduced—and I am mindful of the views of Mr. Trimble and his criticism of the arrangements—it is intended, for better or for worse, to work as an interim arrangement. As the Minister knows, interim arrangements in Northern Ireland can last a long time.

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party

The substance of the interim arrangement that the hon. Gentleman does not like is part of the 2002 Act. By criticising that arrangement he is also criticising the arrangement in that Act, and I am wholly with him on that point.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I am grateful to the right hon. Gentleman. I remember the 2002 Act, having played a part in its passage through the House. I remember discussing those issues at that time and expressing concern. Indeed, I think that I did so on that very point, but my mind is not completely clear about every detail of a Bill that we discussed two years ago. In the meantime, a devolution system is not in operation, so the Parliament of the United Kingdom keeps special responsibilities in respect of the Northern Ireland judiciary. In those circumstances, it is strange that the only way in which a Lord Chief Justice, Lord Justice of Appeal or judge of the higher court can be removed is by passing a resolution of both Houses in the usual way but that the only two people who can move the motion are the Prime Minister and, in the other place, the Lord Chancellor or his nominated substitute.

Let us consider an example. A judge behaves controversially in Northern Ireland and his conduct is called into question. A decision is made to remove him, following a report by a tribunal, but for reasons of political expediency, the Prime Minister decides that it would not be appropriate to do so. Under the present arrangements, it would be impossible for a Member of either House to move a motion to remove that judge. I am happy to acknowledge that the chance of such a circumstance arising is fairly remote, but we are abdicating our responsibility as a Parliament and as a House by surrendering our right to move a motion, while we still have responsibility for the matter, to the Prime Minister and the Lord Chancellor or his nominated substitute.

When the devolution arrangements come in, because they allow greater autonomy for the Northern Ireland Executive, it could be argued that the Prime Minister is required to provide ratification of a procedure that remains with Northern Ireland for the most part. In those circumstances, there is a different argument about whether other Members of Parliament should get involved. In the interim—I suspect from the way in which the Minister presented the case, that this is unintentional—we are surrendering a responsibility that we ought to keep.

Photo of Bill Cash Bill Cash Conservative, Stone

My hon. Friend is making an interesting point. With reference to the good tome that I have brought with me, motions can usually be moved by any Member of the House, so allowing only the Prime Minister to do so is a significant shift. That consolidates the point that my hon. and learned Friend Mr. Garnier, other Members and I have repeatedly made. These are deep waters. Furthermore, I touch on the fact that in Scotland judges hold office ad vitam aut culpam, meaning that they cannot be removed except on the ground of misconduct. But the tribunal describes the position as unfitness for office

"by reason of inability, neglect of duty or misbehaviour", so the deeper we go into the subject, the more problems are thrown up. The Prime Minister might easily take an entirely different view from a Member of the House.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I agree with my hon. Friend. Pending devolution, responsibility lies squarely with Parliament and the Government. As the maintenance of a sound judiciary is very much one of our parliamentary responsibilities, I am coming to the conclusion—it was not my position when we started debating the clause; it had never occurred to me—that unless the Minister gives me an assurance that he will revisit the matter and table necessary amendments if required, I shall invite the House to divide on clause stand part. The House should not abdicate to the Prime Minister, the Lord Chancellor or anybody else its central responsibility, if it considers that a judge within its area of jurisdiction is misbehaving, to move a motion for his removal.

I hope the Minister will respond positively. The matter has arisen in the course of debate, but it is more than academic.

Photo of Edward Garnier Edward Garnier Conservative, Harborough 4:30 pm, 1st February 2005

I am encouraged by my hon. Friend. I have not found all the amendments tabled by him and my hon. Friend Mr. Djanogly wholly agreeable, but most have been interesting. On this occasion, we are opening up an interesting area of constitutional crisis.

The Government have made many mistakes, but they never do anything by mistake. Here we are witnessing the sucking of power from the Chamber to the Executive. We all know that the Executive not only sit in, but sit on the Chamber. When Ministers say, "This is a matter for Parliament" or "This is a matter for the House", of course they mean nothing of the sort. What they mean is, "We, the Government, have made a decision and our obedient Back Benchers will troop through the Lobby, as directed by us and the Chief Whip."

Nobody is under any misapprehension about that. I know the rules of the parliamentary game as well as the Minister does. However, we ought occasionally to remind ourselves that it is a charade, and that when the Minister prays in aid the votes of Parliament, he is merely exercising his power as a member of the Executive to control the House of Commons. I find it extremely worrying. I appreciate that it may be for only a short time in interim legislation, but it is worrying that a Prime Minister or a Government could arrogate to themselves exclusively the ability to do what Members of the House have traditionally been able to do, certainly since 1688.

Photo of Bill Cash Bill Cash Conservative, Stone

Would my hon. and learned Friend also go along this path? The situation in Scotland, because of the different definition of the basis of misconduct, which I gave earlier, is different from that in England and Wales and in Northern Ireland, where there is a similar definition of good behaviour. Taking the responsibility away from the House of Commons and giving it to the Prime Minister raises some extremely tricky questions, which include the question of the tribunal and the basis on which it would arrive at its decision. The Prime Minister

The First Deputy Chairman:

Order. That is very lengthy for an intervention.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

Under the next clause we may be able to discuss further the points that my hon. Friend was making. I am concerned that a limited part of the Executive—the Prime Minister—will keep to himself the ability to present a motion for the removal of a judge. In so doing, he will, at the very least, inconvenience—I use that word in an old-fashioned sense—Westminster Members of Parliament from Northern Ireland of both sides of the traditional divide who may wish to express an opinion about the conduct of a particular judge. He may want to do that, as my hon. Friend Mr. Grieve said, for overriding political reasons, because it is convenient to move the peace process on in a particular way at a particular time. It is not right, however, that we should allow the appointment and removal of judges to be a creature of some other political game.

Photo of Mr Paul Tyler Mr Paul Tyler Shadow Leader of the House of Commons

Does the hon. and learned Gentleman accept that, under clause 105(4), the critical issue is surely not what action is taken by whom but what the tribunal itself has determined? Therefore, his comments on this clause, I hesitantly suggest to such an experienced Member, are more appropriate to the next clause.

The First Deputy Chairman:

Order. I remind Members that the question of tribunals comes later in the debate.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

The hon. Gentleman has been correctly rebuked by you, Mrs. Heal, but on the other hand he illustrates the difficulty that, under our artificial procedures, we are allowed only to debate things in slices. The Bill needs to be considered as a whole. We may be able to have a fascinating conversation about the matter on Third Reading, but by then, of course, it will be too late.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

My hon. and learned Friend might agree that Mr. Tyler has this point, as the word "tribunal" does feature in clause 105:

"Neither the Prime Minister nor the Lord Chancellor"— or his substitute, as it now is—

"may make a motion for the presentation of such an address unless a tribunal".

That, of course, provides adequate protection from wrongfully removing a judge from office, but no protection at all from leaving a judge in office when he should not be there.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

Exactly. That is the point. It is a matter of considerable concern to me that we are allowing the Executive to take on such additional powers. That having been said, I think that Mr. Tyler wants to make his contribution.

Photo of Mr Paul Tyler Mr Paul Tyler Shadow Leader of the House of Commons

I only want to intervene briefly to say that the obverse could apply. If the tribunal has made that recommendation, it would be a peculiar decision by any member of the Executive, whether Prime Minister or Lord Chancellor, to go against the advice. That is properly a matter for a subsequent clause, however.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

The hon. Gentleman says that it would be a peculiar Prime Minister. It is not unknown to have peculiar Prime Ministers.

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party

It is not at all unknown for Prime Ministers to make peculiar decisions on matters relating to Northern Ireland.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

The right hon. Gentleman is right: peculiar Prime Ministers make sensible decisions from time to time, but peculiar Prime Ministers occasionally make peculiar decisions, and we are the victims of them.

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs)

Part 5 of the Bill provides for the removal of judges in Northern Ireland in the period prior to devolution of justice to the Northern Ireland Assembly. Clause 105 inserts a new section 12B into the Judicature (Northern Ireland) Act 1978, to provide for the removal of judges from the most senior judicial offices in Northern Ireland. As at present, the Lord Chief Justice, Lord Justices of Appeal and High Court judges may be removed by the Queen on an address by both Houses of Parliament.

Then we come to the point that has raised the interest of Mr. Grieve, namely, a motion for an address may be made to the House of Commons by the Prime Minister and to the House of Lords by the Lord Chancellor—or, under the earlier amendments, if the Lord Chancellor is not a Member of that House, by another Minister of the Crown at his request. In responding to the hon. Gentleman's inquiry, I confirmed that while for England and Wales any Member of Parliament can make the motion on the removal of judiciary, in Northern Ireland that is not a feature of the settlement arrangements in that jurisdiction.

The hon. Gentleman worries that that will in some way fetter the freedoms and discretions of Members of Parliament in moving motions in Parliament. Let me respond to that. In the case of a statutory requirement such as this, an address could not have legal effect. If it was not proposed by the Prime Minister and/or the Lord Chancellor, Her Majesty could not act upon it. Such statutory provisions are not unusual. For instance, some financial motions—the Whips will know of them—can be moved only by Ministers in this House. Her Majesty's placing of her prerogative at the disposal of the House sometimes requires an indication from a Privy Councillor that consent is signified. On some occasions, particular types of motion require different hon. Members, in their different roles, to make their views known. In this case, I accept that the position is not in line with the England and Wales arrangements, but there is a particular reason for that.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

That is precisely the question—I do not wholly understand what the reason is. As I infer it, it is this: the Government, on the basis of the history of this matter and their intention to move towards devolved structures, simply reproduced in clause 105 the system that would have applied when the devolved structures were in operation, even though they are not.That is not an adequate reason. For the moment, as we continue to carry the can for the discharge of judicial functions in Northern Ireland, it is unnecessary to remove the power of a Member of this House or the other place to move the motion. The Minister should ensure that that right is here; at least then, when the time comes to set up the devolved structures, it would be understandable for him to come to the House to say that it has to be given up. If he wants to convince me that he is right, his explanation must centre on explaining why we cannot have that right in the interim.

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs)

I disagree with the hon. Gentleman. This issue was debated at length during the passage of the Justice (Northern Ireland) Act 2002. There are reasons for the differences between the arrangements for England and Wales and for Northern Ireland. A particular feature of the settlement that followed the changes made in the Belfast agreement is that there were, and are, differences in the devolution arrangements, as even the hon. Gentleman accepts. I understand his point, but that is not the proposal that we are making.

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party

I think that the Minister is, uncharacteristically, in error. What we are discussing is in no way related to the current suspension of the Northern Ireland Assembly. If it resumed tomorrow, the provisions in the 2002 Act would not apply. They are not part of the settlement to which the Minister refers, but they are part of an entirely separate arrangement about the possible future devolution of justice and policing matters to the Northern Ireland Assembly. That will not happen without the agreement of both sides of the community in Northern Ireland, and at present there is absolutely no prospect of that happening in the foreseeable future. We have turned our face very firmly against it. In that situation, to introduce measures that would come into effect only in the distant future is a retrograde step, and to pass this off as following on from the 1998 agreement is not right.

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs)

I am reluctant to reopen the debate that took place not only on the 2002 Act, but in advance of that through the Belfast agreement. The right hon. Gentleman has his particular view and I respect that. However, the arrangements are not unduly constraining on a decision of this House or of the other place in making its views known about the judiciary and the removal of members from it.

Photo of Gwyneth Dunwoody Gwyneth Dunwoody Labour, Crewe and Nantwich

I am concerned that we may be giving away a genuine power in exchange for nothing. Will my hon. Friend the Under-Secretary simply tell us whether Mr. Trimble is correct? He says—he spelled out the precise reasons—that the effect that the Under-Secretary outlined is incorrect. Is he right?

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs) 4:45 pm, 1st February 2005

I do not believe that the Government should agree with the right hon. Gentleman's position—[Interruption.] Let me explain why. The clause provides for a mechanism for the House to begin the process of moving an address to Her Majesty for removing members of the senior judiciary and for a specific arrangement for Northern Ireland, and I believe that it is a corollary of the settlement that followed the Belfast agreement and the Justice (Northern Ireland) Act 2002. If the Committee determined that it did not like the arrangement, hon. Members could not only vote against it today, but pass an Act to amend it in exceptional circumstances.

It would be for Parliament to overturn the arrangement and, in a pre-devolution environment, make the necessary arrangements for all hon. Members to express their views through a majority opinion. After all, Governments do not always win the day on Divisions. I can think of occasions when Governments have been defeated. If a majority of hon. Members believed that the issue was so important that we needed to overturn the arrangement, they could have their day and express their view.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

I am sure that the Under-Secretary believes every word that he says, but the problem is that he did not serve, as I did, on the Standing Committee that considered the 2002 Act. I am sure that he has a note telling him about the matter but, as far as I can recall, those issues were not canvassed at length. Like the Bill that we are considering, that measure was severely guillotined and therefore many important subjects were not discussed. The Under-Secretary has yet to provide us with a reason. He said, "I believe"— that is not a reason but an assertion of the state of his mind. I need to know the reason.

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs)

I shall be more explicit for the hon. and learned Gentleman. The Belfast agreement, which led to the criminal justice review report, suggested that specific arrangements should be included in the 2002 Act. They are in that Act but have not yet been implemented. That is why we are making those specific points now.

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party

It is important to clarify the matter. The Belfast agreement of 1998 does not refer to the devolution of policing and justice. It set up a justice review, which was not a matter of negotiation or settlement. Neither my party nor any other party agreed to it. It involved a group of academics and officials. The Government unilaterally decided to adopt the report—there may have been pressure from some parties, but not mine, to agree to it—and the provisions for removal were to come into operation on devolution, which has not happened and will not happen. Why, therefore, introduce before the devolution of policing and justice a provision that relates to post-devolution, when the Government know that devolution is controversial in Northern Ireland? I hope that the Under-Secretary will stop trying to pass off the clause as part of the agreement; it is not.

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs)

I have a different understanding from that of the right hon. Gentleman about the contents of the criminal justice review, its recommendations and the way in which they should be implemented in Northern Ireland. I act on the advice that I receive on those matters.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I thank the Under-Secretary for giving way, which will give him an opportunity to read the next note that has landed on his lap.

The 2002 Act did not envisage the position that clause 105 sets out, but that of an operating devolved Administration. As the Under-Secretary knows, the chances of a devolved Administration, especially after recent announcements by the Prime Minister and others, are low for the foreseeable future. Surely that in itself is a reason why a measure that might have been justified as an extremely short-term arrangement, lasting a few months pending the devolved structures coming into operation, cannot possibly be justified in terms of removing a fundamentally important right of this House and the other place, when there is no foreseeable date for the new system to come into operation. I hope that, even at the eleventh hour, the Minister will think again and give an assurance to the Committee that he will table an appropriate amendment to restore our right, and that of the other place, to move a motion to remove a judge if we think it right to do so.

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs)

The Bill has yet to pass through its other stages and we shall have an opportunity to look at this matter again on Report. However, under advice, I am of the opinion that the arrangements that we are proposing reflect the criminal justice review report. If, on studying these matters further, I reach a different opinion, there will certainly be opportunities to return to them at a later date. We do not yet have a date for the Report stage, but there will be opportunities to look at the issue at that point.

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs)

I think that that is all I can say for now, but I suppose I should give way to Mr. Cash.

Photo of Bill Cash Bill Cash Conservative, Stone

One last intervention, if I may.

There are several gates involved here, as the Minister will appreciate. First, there is the question of whether an address may be presented by any Member of this House. On the question of the Prime Minister's involvement, I know that we are going to discuss the tribunal later, but it is directly related to this issue. When the Minister looks at the manner in which the tribunal will function, and of whom it will be composed, he will realise that when the Lord Chancellor comes to exercise his powers under subsection (5) he will have to do so after the tribunal—which will be constituted as set out in clause 107—has performed its functions. The more gates there are, the more difficult—

The First Deputy Chairman:

Order. I think that the hon. Gentleman has made his point.

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs)

I remain to be convinced of these arguments, but I will look at them again. I might, however, come back to the House on Report to say that we should stand by the way in which we have drafted this arrangement. I understand that it relates to the pre-devolution settlement and not necessarily to the post-devolution arrangement, as Mr. Trimble has said. This might be a matter on which I should review the texts involved. He is more familiar with them than I am, but this is the advice that I have received. I know that this is part of the 2002 Act and that it features in part in the criminal justice review, so I shall look at those particular matters again—but, for the time being, I feel that it is of value for clause 105 to stand part of the Bill. It makes provision for far more important issues than simply this narrow point about Members of Parliament and the ability of the tribunal to sit. I hope that clause 105 can stand part of the Bill.

Question put, That the clause, as amended, stand part of the Bill:—

The Committee divided: Ayes 277, Noes 162.

Division number 62

See full list of votes (From The Public Whip)

Question accordingly agreed to.

Clause 105, as amended, ordered to stand part of the Bill.