Clause 106 — Removal from listed judicial offices

Orders of the Day — Constitutional Reform Bill [Lords] — [2nd Allotted Day] – in the House of Commons at 4:53 pm on 1st February 2005.

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Photo of Dominic Grieve Dominic Grieve Shadow Attorney General 4:53 pm, 1st February 2005

I beg to move amendment No. 351, in page 47, line 7, leave out 'except after consultation with' and insert 'without the agreement of'.

Clause 106 deals with the mechanism of removal from listed judicial offices in Northern Ireland. Under subsection (1):

"A person holding a listed judicial office other than as a judge of the High Court may be removed from office (and suspended from office pending a decision whether to remove him) but only in accordance with this section."

Under subsection (2):

"The power to remove or suspend him is exercisable by the Lord Chancellor", and I have no problem with that. Under subsection (3):

"He may only be removed if a tribunal convened under section 107 has reported to the Lord Chancellor recommending that he be removed on the ground of misbehaviour or inability to perform the functions of the office."

The problem arises there. It is quite clear that the Bill provides that he can be removed or suspended only

"after consultation with the Lord Chief Justice".

I have to tell the Minister that I do not consider that to be an adequate safeguard.

Provision is made for the tribunal to make a preliminary finding and pass on the recommendation, but given that the system in England and Wales is based on an attempt to separate the mechanisms of discipline from political interference, I would have expected that the removal by the Lord Chancellor could take place only with the agreement of the Lord Chief Justice of Northern Ireland. Will the Minister explain why it was not thought right to include that point in part 5?

It is also worth considering what, in reality, the tribunal amounts to. I apologise for possibly straying into clause 107, but it is necessary to do so. As I understand the constitution of the tribunal, it would be possible for the Minister to appoint a majority of its members. Although clause 107 provides for certain individuals to serve on such a tribunal, it does not provide a ceiling limit on the numbers who do so serve. In those circumstances, there is all the more reason for the Lord Chief Justice of Northern Ireland to be involved in the decision-making process. If he believes that a judge should not be removed, I would find it inconceivable for the Lord Chancellor to go ahead nevertheless. In that case, the proper safeguard should surely be that they are both in agreement on the matter.

If it were suggested that acceptance of the amendment could lead to a conflict between the Lord Chief Justice and the Lord Chancellor, I would regard that—providing the system were working properly—as extremely far-fetched. If that did happen, we would effectively have a constitutional crisis, and in those circumstances it would be right for Parliament to know how and why the Lord Chief Justice and the Lord Chancellor had such diametrically opposite views on the subject.

I do not want speak to this amendment at great length, but I do not want the Committee to think that that suggests that I do not consider it to be very important. I do: it is of fundamental importance, and I shall divide the Committee if the Minister does not give me suitable reassurance that the matter will be considered again.I simply do not understand why the tribunal should go the Lord Chancellor, and why the Lord Chief Justice should have only a consultative role. I believe that the Lord Chancellor and the Lord Chief Justice should act together in this matter.

Photo of Professor Ross Cranston Professor Ross Cranston Labour, Dudley North

I did not rise to the bait in respect of clause 107, but I do want to contribute to this debate. As Mr. Cash said, these are deep waters, but I hope that their very depth will protect me to some extent.

I want to make three points, but first I should declare an interest. I am a member of the Bar of Northern Ireland and also hold the rank of Queen's Counsel there. I have never practised in Northern Ireland and the rank that I hold is not an indication of my merit, as it followed automatically when I became Solicitor-General in 1998.

When I visited Northern Ireland as Solicitor-General, I was struck by the quality of the judiciary there. For judges, the situation was very difficult and they were under close protection all the time. The fact that the Bench was drawn from the whole community in Northern Ireland impressed me, as did the way in which the judiciary handled emergency cases. Although there was no jury in those cases, judges were both conscientious and careful.

My first point is that clause 106, and the equivalent provisions in the Justice (Northern Ireland) Act 2002, as amended, will never be invoked in practice. Only in very exceptional cases will a member of the lower judiciary in Northern Ireland be found guilty of the misbehaviour that will cause these provisions to be applied.

My second point has to do with the substantive provisions in the clause, and it is that very high barriers are in place in respect of the removal of a judge. A tribunal has to be convened and, although I do not want to stray too far into the territory covered by clause 107, the composition of that tribunal is set out in clause 107(5). That subsection provides that the exclusive membership of the tribunal must "consist of" the Lord Chief Justice or a Lord Justice of Appeal in Northern Ireland, a judge of Northern Ireland High Court, and a lay person. I think that Mr. Grieve, in his earlier remarks, may have made an error in that regard.

The tribunal is therefore extremely powerful, and the first hurdle that must be negotiated is that there must be a tribunal decision.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

If the hon. and learned Gentleman is correct in his reading of clause 107, I am reassured. However, he used the word "exclusively", whereas I saw in the Bill only the word "consist". That is why I suggested that the tribunal had to consist of those members specified, but that it could also consist of other members.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The Minister shakes his head to indicate that I am mistaken. The anxiety that I felt when I read that part of the clause is therefore allayed.

Photo of Professor Ross Cranston Professor Ross Cranston Labour, Dudley North

The hon. Member for Beaconsfield has done the Committee a service and the provision can now be read in terms of Pepper v. Hart—that the Bill sets out the exclusive membership of the tribunal.

The first thing that must happen is that the tribunal must be constituted. It must then conclude that there has been misbehaviour on the part of a judge, or that that judge is unable to perform the expected functions. Therefore, the tribunal would act in a quasi-judicial way, making that decision on the basis of facts. It would be a reasoned decision.

The third hurdle is that there must be consultation and the amendment refers to that. I am not aware of the detailed jurisprudence in Northern Ireland about what that means, but in England and other common law jurisdictions consultation means consultation. It does not mean asking and getting a reply. It means serious consultation. There are three serious hurdles in the clause.

Photo of Bill Cash Bill Cash Conservative, Stone

The hon. and learned Gentleman will know that consultation, although it must be serious, means no more than that someone must listen to what is said. It does not mean that someone must do something as a result of it. Serious consultation means that someone must listen, but it goes no further than that.

Photo of Professor Ross Cranston Professor Ross Cranston Labour, Dudley North

No, it means that someone must listen seriously. I accept that it does not mean that someone must do as they are told; but it means that someone must listen to what their consultees have told them.

I disagree with my hon. Friend Tony Wright, one of my neighbours in the west midlands, who spoke about the logic that would lead to people who sit as recorders—as I do and as at least one Opposition Member does—being excluded from the House. On the subject of logic, if one starts from the wrong premise and follows it logically, one may end up in hell. In this country, our constitutional arrangements do not work logically; they work pragmatically and we proceed incrementally. Sometimes that means that the arrangements may be muddled or inconsistent, as in this case, between jurisdictions, but that is the nature of our constitution. I can see that, logically, the amendment might have a certain attraction, but as a matter of pragmatic incrementalism, which is what our constitution is based on, it is not appealing.

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

In contrast with the hon. and learned Gentleman, I was brought up to believe that the road to hell is paved with good intentions. I suspect that that might have happened with these proposals.

This is an important amendment, and I and my colleagues share the view of Mr. Grieve that we need some assurance on the matter. It may seem narrow geographically and in terms of the total range of the Bill, but it is symbolically important. Consultation and agreement are the last-stop position in a decision-making process. Reference has already been made to the various hurdles. It is important to have a proper balance for what is clearly a safety valve to be used—as Ross Cranston said—in exceptional circumstances. If the House legislated only on circumstances that are not exceptional, we would lighten our legislative load considerably. The provision may cover exceptional circumstances, but it sends out an important signal. If there is to be a veto at the end of the process, we should consider carefully whether it should best be put in the hands of the appropriate Lord Chief Justice rather than a Minister of the Crown.

I pray in aid my right hon. Friend Mr. Beith, the Chairman of the Constitutional Affairs Committee, and I am delighted that he is in his place. The Committee said:

"any new system of discipline will need to be firmly within the control of the judiciary in individual cases, and we believe that the Lord Chief Justice should be the person primarily responsible for it. The relevant provisions of the Bill will need to be very carefully examined."

That should apply to the whole United Kingdom and should include Northern Ireland, as well as other parts. I hope that the hon. and learned Gentleman is about to persuade me otherwise, but I suspect not.

Photo of Professor Ross Cranston Professor Ross Cranston Labour, Dudley North

I simply point out that the Lord Chief Justice is one of four members of the tribunal and, obviously, a persuasive voice in the proceedings of that tribunal.

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

I am delighted to hear that. I, too, am very persuasive, but I suspect that in a few moments that will not necessarily result in the conclusion of the debate going in my favour. Persuasion is not enough—[Interruption.] The Minister thinks that I may be persuaded. I am delighted about that.

The measure gives a rather important signal: who is to have the last word? That is significant in all parts of the United Kingdom. The relationship of the Executive to the judiciary is at the heart of the legislation and, as the Minister knows, we have great sympathy with the bulk of the Bill, but it is more than a symbol. There is significance in this point and we would err on the side of judicial independence.

Earlier, Mr. Cash was lecturing us about the glorious revolution of 1688. I, too, studied that period, and although I was never a lawyer and aspire to no legal expertise, I believe that that change, from the king's pleasure to the way in which we now operate in this kingdom, is extremely important, because if we were directly to translate the king's pleasure of the pre-1688 disposition to the present day it would be the Executive's pleasure—the Government's pleasure—that would be the deciding factor as to whether somebody remained in post. That is not a satisfactory position.

I hope that the Minister will be able to give us the reassurances that have already been sought on the issue. It is more than symbolic, and it is extremely significant that we should get it right.

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

I listened with great interest to the contribution of Ross Cranston, although I am not sure that his intervention during the last speech was entirely accurate. He may want to look at that provision again. What particularly interested me in his original contribution was his comment that we worked pragmatically rather than simply following logic wherever it might lead. That struck me as a reworking of the famous dictum of Oliver Wendell Holmes, and I endorse it entirely. It is of course part of the reason why I do not like the whole Bill. The whole Bill stems from a rather jejune attitude to the separation of powers, rather than respecting the way in which our traditions have actually evolved, but that is a broader matter.

I agree entirely with the comments of Mr. Grieve and would like to add to them that examining the legislative history of the provision that is now clause 106 (5) would be worth while. One turns to the Justice (Northern Ireland) Act 2002, where the equivalent provision is section 7(5), which, as enacted, reads that a person holding a listed judicial office

"may not be removed or suspended without the agreement of the Lord Chief Justice".

The Act was clear that it had to be the agreement of the Lord Chief Justice, rather than consultation. The lowering of the procedural hurdle occurred in the Justice (Northern Ireland) Act 2004, on whose Bill Committee I had, unfortunately, to sit—but that is another matter. The phrase "without the agreement of" was deleted from clause 5 and the phrase "except after consultation with" was inserted.

We disapproved heartily of the 2004 Act. We did not consider that the change was made on its merits; it was made simply because it was one of a number of items on the Social Democratic and Labour party shopping list. The SDLP wanted to prove that it was more effective than Sinn Fein and that it could bully the Government into making changes in the law to suit the SDLP rather than the changes the Government considered appropriate or advisable. For their own reasons, the Government decided to give way to that pressure and amended that Bill.

As I said previously, the 2002 Act is not in force and will not be in force even if devolution is resumed in Northern Ireland. The Act will come into force only after resumption and a subsequent decision by the Northern Ireland Assembly on a cross-community vote to agree to the devolution of justice and policing matters, which as I said to the Minister, is not going to happen. It will not happen because my party will not agree to it, and I believe that the Democratic Unionist party would adopt the same position. It will require considerable changes that do not seem likely to happen before we would agree to the devolution of policing and justice matters.

This is not a temporary arrangement that will operate in six months or a year, when policing and justice matters are devolved. This is something for some way in the future, so why it has been brought into the present? It is not a matter of any agreement between the parties—there never was any agreement between them before the 2004 Act or the 2002 Act—and it is not in any way part of any settlement. Crucially, when the Government first looked at the issue, they decided—their decision is embodied in the 2002 Act—that these procedures should operate only with the agreement of the Lord Chief Justice, which is more than just consultation.

On this matter, the Government's first thoughts, which were their own thoughts, were better than what they decided to do as part of a squalid political deal with the SDLP at a later date. For that reason, I urge the Government to accept the amendment moved by the hon. Member for Beaconsfield. At the very least, they should go back and take a good, hard look at the issue and explain to us why they have introduced these provisions, which will not go live in Northern Ireland—at least the rest of the 2002 Act provisions will not go live—and the Minister will need to assure us that there is a reason for introducing them and that no untoward political influence of the sort that resulted in the 2004 Act is behind them.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

Mr. Trimble has, not for the first time, alighted on some serious points and, by explaining the history of the Northern Ireland legislation, exposed the Government's paucity of thinking when they came to construct clause 106, and the amendment is a further means by which we can expose the inadequate thinking that lies behind the Bill.

Ross Cranston sought to persuade us that the way in which the Bill was drafted and constructed had a pragmatic basis, but we know very well that the entire volume is an ex post facto justification for the Prime Minister's decision to remove Lord Irvine. We have had all those arguments, but the Bill is the result of two years' thinking about how to undo or make politically and constitutionally acceptable that act of political assassination. We are having to wade through the consequences of that in Committee, and it is a pity, first, that we do not have enough time to do so properly, and secondly, that the Minister, at least judging by our previous discussion, is not entirely briefed on the subject.

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

Perhaps the hon. and learned Gentleman could help the Committee by getting to the point.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

I think that these late nights are getting to the young man, but I shall continue.

The amendment is perfectly sensible. Surely, if the Government are as keen as they tell us they are to ensure the separation between the Executive, Parliament and the judiciary, it must be perfectly proper for the Lord Chief Justice to be required to agree with any disciplinary activities that the Bill intends. If the separation of powers is to be a properly respected concept, the senior judge in Northern Ireland must agree to the removal or suspension of a judge in Northern Ireland. After all, that is only the reverse of the picture that the Government wish to paint in this jurisdiction. Clause 94(2)—we will consider the clause in greater detail in due course—says that the Lord Chief Justice of England and Wales

"may exercise any of the following powers but only with the agreement of the Minister".

If there is to be agreement one way, why should there not be agreement the other way in the other jurisdiction?

That is a minor matter compared with the question of removal. The Lord Chief Justice must get the agreement of the Minister—the Lord Chancellor, as we now know he will be called—if he wants to give advice, a warning or a formal reprimand to a judge in this jurisdiction. However, the Lord Chief Justice of Northern Ireland cannot do any of those things because only the Lord Chancellor can do that, after merely consulting the Lord Chief Justice of Northern Ireland.

Clause 94(5) states that the Lord Chief Justice may suspend an English judge for any period if

"the person has been convicted of a criminal offence, . . . it has been determined under prescribed procedures that the person should not be removed from office, and . . . it appears to the Lord Chief Justice with the agreement of the Minister that the suspension is necessary for maintaining confidence in the judiciary."

What is good for one jurisdiction should be good for the other.

I was not impressed by the attractively put argument of the hon. and learned Member for Dudley, North that this is a funny old world and we have a funny old constitution, so we tinker about with it in a funny old way. The Government are knocking the constitution to bits on the back of an envelope. When we get to a Bill, we should at least do things properly.

Photo of Bill Cash Bill Cash Conservative, Stone 5:30 pm, 1st February 2005

My hon. and learned Friend referred to several anomalies, and I am rather pleased about the extremely small alliance of Opposition Members that has built up. These matters are important and have been cobbled together in the Bill. They are not being treated as seriously as they should on behalf of the people of this country, and especially those in Northern Ireland, who will suffer their consequences in due course.

Ross Cranston is a fairly near neighbour of mine. He said that we should not get too worried about most of this stuff because the measures are unlikely to be used in practice. He then said that they would be used in exceptional cases, at which point one might have reasonably drawn a sharp intake of breath. We would assume that the measures would deal with only exceptional cases, but part 5 of the Bill and the accumulated legislation that lies behind it are devoted to doing just that. It is exceptional for such things to go wrong, but it is important to handle exceptional cases correctly, so I am glad that the amendment is giving us the opportunity to examine the provision.

Clause 106(5) states that a judge may not be removed or suspended

"except after consultation with the Lord Chief Justice."

We would like the words "without the agreement of" substituted for the phrase "except after consultation with". However, I ask, "Without the agreement of the Lord Chief Justice about what?" Subsection (3) gives us a clue. I am grateful to Mr. Trimble for having schedule 1 to the Justice (Northern Ireland) Act 2002—the relevant legislation—immediately available, because I did not have it to hand. It is headed "listed judicial offices" and details all those who fall into the category. I hazard a guess that few hon. Members have had the opportunity to examine it today. The list starts with a judge of the High Court and continues down through county court judges to a range of other persons, many of whom hold an office that might be described as fairly low but is not low at all, because it is of immediate and great importance to the average person in Northern Ireland: such offices include the chairmen of a range of tribunals. The list is extremely long and therefore permeates the whole of Northern Ireland society. When I read that the tribunal will recommend in its report that a person

"be removed on the ground of misbehaviour or inability to perform the functions of the office",

I feel bound to draw attention to one or two points about the grounds for removal and what sort of recommendations will be made.

Under new section 12B(1) of the Judicature (Northern Ireland) Act 1978, the Lord Chief Justice and Lord Justices of Appeal hold office "during good behaviour". Although I do not think that we need to be pedantic, it is interesting to note that, under clause 106(3)(b), the recommendation that will lead to removal from office is based

"on the ground of misbehaviour".

Immediately, therefore, we see a distinction: good behaviour is set forth as the rule, but at the point of removal, the question has become whether there is misbehaviour.

Perhaps there is a simple explanation. We can be confident that the draftsman knows what he is doing and that, as my hon. and learned Friend Mr. Garnier pointed out, the Government do nothing without a good reason, so it would be incredibly stupid of us to imagine that they do not have a good reason based on an assessment of the precise meaning of the wording. I go further and say that parliamentary counsel can certainly tell the difference between "good behaviour" on the one hand, and "misbehaviour" on the other.

Photo of Mr John Taylor Mr John Taylor Conservative, Solihull

I am following my hon. Friend's argument as carefully as I can. Is he suggesting that there is a twilight zone of behaviour that falls short of good behaviour, but has not yet become as debased as misbehaviour? If so, what would he call it?

Photo of Bill Cash Bill Cash Conservative, Stone

That is an important point. Perhaps he was fortunate, but my hon. Friend did not hear the debate on the previous clause, when I raised the question of what misconduct involves. Those are questions that will be decided by the tribunal. There is indeed a twilight zone, and it may well emerge in the exceptional circumstances to which the hon. and learned Member for Dudley, North referred. That will be the only basis on which such matters are decided. The more unique the circumstances, the more important it is that we get the provisions right. I am puzzled by the discrepancy between the expressions used—"good behaviour" and "misbehaviour"—and I would like an explanation.

Hon. Members might recall that in the previous debate I referred to Scotland, where there is a different historic tenure to that which applies in the rest of the United Kingdom, including Northern Ireland. In Scotland, the historic tenure is ad vitam aut culpam—judges cannot be removed except on the grounds of misconduct. However, inferior judges in the list of judicial offices in the United Kingdom, including Northern Ireland, receive lesser protection. The legal position is that circuit and district judges can be removed from office by the Lord Chancellor, if he thinks fit, for incapacity or misbehaviour. I am certain that parliamentary counsel and the Minister will realise that that is another deliberate change to the existing arrangements, and I should like to know why.

With respect to the question of tribunals in Scotland, the removal of judges, if the First Minister is involved under devolution arrangements which, as I have already said—

Photo of Alan Haselhurst Alan Haselhurst Deputy Speaker and Chairman of Ways and Means

Order. I am sure that the Committee is always pleased to hear from the hon. Gentleman. I am not sure, however, that he should speak in quite such a dilated manner about the amendment, which is very particular. A certain amount of comparative evidence may be raised, but I suspect that we have reached the boundaries, as this is a narrow amendment relative to the persons mentioned in the Bill.

Photo of Bill Cash Bill Cash Conservative, Stone

I entirely understand that point, Sir Alan. The framework of the clause, however, allows an interaction with the questions of criteria. According to a legal text, a judge from the Court of Session could be investigated if he were unfit for office

"by reason of inability, neglect of duty or misbehaviour."

In relation to the question of what he is being removed or suspended for under clause 106(3)—

The Chairman:

Order. That is not the question. The question is about the role of the Lord Chief Justice in this matter, not the reason why a decision, agreement or consultation may be called for.

Photo of Bill Cash Bill Cash Conservative, Stone

I understand your point, Sir Alan.

The Chairman:

I hope that the hon. Gentleman will do more than understand it. I hope that he will follow it.

Photo of Bill Cash Bill Cash Conservative, Stone

I will indeed, Sir Alan. If the amendment were accepted, a judge could not be removed or suspended without with the agreement of the Lord Chief Justice. In its existing form, clause 106(5) says that he cannot

"be removed or suspended except after consultation with the Lord Chief Justice."

It would defy my understanding of the rules of debate if I were not allowed to argue that the question of removal or suspension should include reference to clause 106(3). In conclusion, the words "neglect of duty" have been omitted from that subsection, although the draftsman included the words

"misbehaviour or inability to perform the functions".

That mirrors precisely the Scottish provision. The omission of "neglect of duty" must therefore be deliberate, and I should be grateful if the Minister would explain why.

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs) 5:45 pm, 1st February 2005

Clause 106 provides the Lord Chancellor with the power to remove from office a member of the judiciary in Northern Ireland below High Court judge level in the period prior to devolution of justice to the Northern Ireland Assembly. Removal is possible only for reasons of misbehaviour or inability, and can take place only on the basis of a recommendation from a tribunal convened under clause 107 and following consultation with the Lord Chief Justice of Northern Ireland. The clause takes into account the arrangements under the Justice (Northern Ireland) Act 2002, as amended by the Justice (Northern Ireland) Act 2004, for the removal of a member of the judiciary after devolution of justice functions. Under the 2002 Act as amended in 2004, the Lord Chief Justice is not required to consent to removal.

The provisions in Northern Ireland in relation to the post-devolution removal of a member of the judiciary reflect the recommendations of the Northern Ireland criminal justice review report. That report, which arose out of the Belfast agreement, was tailored to Northern Ireland's circumstances and was subject to wide consultation and acceptance by the Government. The report did not recommend that the Lord Chief Justice must consent to the removal of a judge. That means that Northern Ireland will be different from England and Wales. That is what devolution is about. It does not mean, though, that we are less committed to the central principles of independence, fairness and transparency. There can be different ways to achieve different aims.

Amendment No. 351 is not necessary. Each UK jurisdiction will find its own way towards independence, fairness and transparency for its judiciary, in the most appropriate way and in accordance with the needs and circumstances of its own jurisdiction. The process that I outlined happens to be the right way forward for Northern Ireland.

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

I repeat to the Minister the point that I made on the earlier set of amendments. It is not sufficient simply to pray in aid the 2002 Act. The Act is not in operation, and we are dealing here with legislation that will operate only until the 2002 Act comes into force, whereupon the provisions of the Bill will fall. Why, when the 2002 Act does not apply, has a policy decision been made to bring forward into the current regime provisions which, under the law as I understand it, will come into operation only at some dim and distant point in the future when the 2002 Act comes into operation, if it ever does?

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

The reason we are introducing the proposals at this stage is that we are discussing the reform of the office of Lord Chancellor. The proposals are needed in order to bolster judicial independence in all jurisdictions in which the office of Lord Chancellor changes. We know that if the arrangements were not changed, as at present, the Lord Chancellor could act unilaterally for lesser judges, and for High Court judges or above with an address to Parliament. There would be no tribunal requirement. This is our way of ensuring that we are bolstering the independence of the judiciary in the jurisdiction of Northern Ireland, making it consistent with the 2002 Act, as amended in 2004.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Leader of the House of Commons

Does the Minister agree that the decision to remove under clause 106 would be justiciable, in the sense that it would be subject to judicial review if it was made in an arbitrary or unreasonable way? Can he think of any circumstances in which it would not be arbitrary or unreasonable if, having been consulted, the Lord Chief Justice said, "No, this shouldn't happen", and in the teeth of that opposition, the Lord Chancellor went ahead and did it?

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

All these matters are justiciable and could be subject to requirements for reasonableness, but I will not discuss hypothetical situations and what is or is not reasonable. That will be for the courts to test, and there is plenty of case law, the Wednesbury principles and so on, to which we can return. The provisions in the clause, which the amendment would change, are the right way for Northern Ireland to give extra protection to bolster judicial independence. I shall explain why I believe that.

The removals tribunal that we will set up in Northern Ireland, which is not being replicated in England and Wales, is different and adds extra layers of protection for judicial independence—for instance, the fact that the judicial members of the removals tribunal are appointed by the Lord Chief Justice of Northern Ireland, who is capable of appointing himself to that tribunal. The tribunal could be chaired by the Lord Chief Justice of Northern Ireland, if so desired, and he would be involved throughout the tribunal process. That is not the arrangement for England and Wales.

We have consultation instead of concurrence with the Lord Chief Justice, as we would have in England and Wales. We do not need that in Northern Ireland because the Lord Chief Justice of Northern Ireland would have had his bite of the cherry earlier through the removals tribunal process, which is stronger than we have arranged for England and Wales. They are different jurisdictions, they follow different paths, and that is the nature of the split in jurisdictions between those points, and of devolution.

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

The Minister has said that part of the justification is that the Lord Chief Justice had a bite at the issue at an earlier stage. That is true of a tribunal under clause 107(5),

"to consider the removal of the holder of any other protected judicial office", where tribunals consist of

"a person who holds, or has held, the office of Lord Chief Justice or Lord Justice of Appeal", which gives the Lord Chief Justice a chance of being there, not a certainty. Under clause 107(4), however, a tribunal

"to consider the removal of the Lord Chief Justice, a Lord Justice of Appeal or a judge of the High Court is to consist of . . . a person who holds high judicial office . . . and does not hold (and has never held) the office of Lord Chief Justice, Lord Justice of Appeal or judge of the High Court".

Therefore, the Lord Chief Justice possibly comes in under subsection (5), but certainly does not do so under subsection (4).

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

The provisions mirror arrangements that were debated at length in relation to the 2004 Act and, before that, the 2002 Act. We are introducing them at this stage because they give that extra measure of protection to bolster independence of the judiciary. Were we not to do that at this stage, and were we to change the office of Lord Chancellor, we would not have the programme for removals in place to give that protection to judicial independence.

Photo of Bill Cash Bill Cash Conservative, Stone

There is another question of protection—the protection of people in Northern Ireland in this context or elsewhere. We are dealing with the question of whether there has been some misfeasance—I use that word because of the confusion that has been created by the wording that the Minister has chosen. Why are the words "neglect of duty" not also included in subsection (3)? Can he clarify what is the difference between good behaviour and misbehaviour? If he cannot do that now, will he please be good enough to write to me?

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

Those parts of the clause mirror provisions in other Justice Acts: in this case, the Justice (Northern Ireland) Act 2002, as amended by the Justice (Northern Ireland) Act 2004. I hear the hon. Gentleman's point and your strictures, Sir Alan, not to widen the debate too far from the amendment. On the difference between good behaviour and misbehaviour, however, I am not sure that there is the hidden middle ground between those points that he seems to suggest. The current law is that judges hold office during good behaviour, and if they are guilty of misbehaviour, they can be removed. That reflects that misbehaviour is of course the opposite of good behaviour. It is as straightforward as that.

I hope that I have explained to the Committee why we feel that it is right to bolster judicial independence in Northern Ireland in this particular way, with the removals tribunal and the involvement of the Lord Chief Justice of Northern Ireland. Yes, it is different from the arrangements in England and Wales, but that is for good, historic reasons. It suits the situation amply and provides an extra level of protection, enhancing the protection of judicial independence.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Leader of the House of Commons

On the good behaviour point, subsection (3) refers not just to "misbehaviour" but to

"inability to perform the functions of the office."

Does not the absence of good behaviour include incapability as well as misbehaviour?

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

I do not want to get into the definition of misbehaviour, further to my previous comments. We might be able to correspond about the matter, and I know that the hon. Gentleman enjoys correspondence. I will probably engage in a long series of written representations with him on that point.

I hope that I have explained why we do not feel that amendment No. 351 is legitimate at this point, and we hope that in due course the Committee will support clauses 106 and 107.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I very much regret the approach that the Minister has taken on this. Faced with a major piece of constitutional legislation that provides for reform of the role of the Lord Chancellor, the Minister and the Government have been obliged to place in one statute, in stark juxtaposition, different structures for different parts of the United Kingdom. The Minister is forced to stand up and say rather limply to the Committee, "We have got to preserve this, because it is what has been deemed appropriate for the people of Northern Ireland in past legislation that we have enacted." However, the problem that he shies away from tackling is that all that past legislation was introduced with the intention that it would operate under a devolved structure that will now not happen for the foreseeable future. For this House then to abdicate its responsibility and leave the people of Northern Ireland with a vastly inferior system of scrutinising the activities of the judiciary through Parliament is extremely unhelpful and wrong.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

My hon. Friend is being too generous. Before the right hon. Member for Upper Bann made his first intervention on the Minister, the Minister said that this happens to be the best system for Northern Ireland, as though it had emerged out of the ether. Nothing in the Bill is there except by design, so either the Government have thought about it and got it wrong, or they have not thought about it and stuck it in regardless.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

My hon. and learned Friend is right. I infer, I think correctly, that the Government's desire to draft the Bill in this way has nothing to do with an objective analysis of whether this is the best system to impose on the people of Northern Ireland, or with protecting their interests. They did it because they fettered themselves, as they see it, in the past by setting up structures that may or may not be appropriate for a devolved structure of government, but certainly are not for as long as power is retained at Westminster. Then they say to the House, "You can't tinker with it."

I completely disagree with the Minister about this. It would be much better if any removal or suspension had to take place with the agreement of the Lord Chief Justice. Furthermore, it is wrong that this House should be deprived of the opportunity to table a motion for the removal of a judge from office. On that basis, we are being completely consistent. For those reasons, Sir Alan, I wish to press the amendment to a vote.

Question put, That the amendment be made:—

The Committee divided: Ayes 168, Noes 276.

Division number 63 Orders of the Day — Constitutional Reform Bill [Lords] — [2nd Allotted Day] — Clause 106 — Removal from listed judicial offices

Aye: 168 MPs

No: 277 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Question accordingly negatived.

Clauses 106 to 108 ordered to stand part of the Bill.