My Lords, this amendment seeks to ensure that the eight judges of the High Court, along with other senior judges, should not be appointed by the commission. I am disappointed that the Government have not relented on this. In Committee the issue was clouded with irrelevance with regard to who would or who would not become a Privy Counsellor. The noble Baroness, Lady Scotland, argued that because judges of the High Court are not Privy Counsellors, they could not be appointed in the same way as the Lord Chief Justice and the Lords of Appeal. However, when the point was put to her by the noble and learned Lord, Lord Mayhew, the noble Baroness admitted that only on a few occasions do the Lords of Appeal exercise their UK-wide responsibilities. If that is the case, then it does not appear to me to be relevant whether High Court judges are appointed in the same manner.
In Northern Ireland we face a difficulty in that we are living in a period of transition. We are in a hugely difficult situation in which the whole political process is finding it hard to bed down. The one element of life in Northern Ireland that has been consistent over the past 30-plus years is the judicial process. Yet it appears to us that this legislation may reduce the appointment of High Court judges to a farcical process; that is, something in the nature of Buggin's turn. That is because the First Minister and the Deputy First Minister are going to be put in the position where they have to strike a deal However, even today they are not natural allies, although because of the special nature of politics in Northern Ireland, they work together. But it is possible that the First and Deputy First Ministers may grow far further apart in years to come.
The best way in which I could describe what is likely to happen to the High Court judges is that they will be appointed by a form of sectarian rotation. If such a move were to be decided in your Lordships' House, then it is not something on which we could congratulate ourselves.
No matter where you go in Northern Ireland, a huge emphasis has been placed on the sectarian balance. But it is one that—certainly in recent times—has never emerged in terms of the appointment of High Court judges. We have sought all kinds of ways and means to resolve the problem. With regard to positions in the district and borough councils and, indeed, in the Northern Ireland Assembly itself, we have adopted the d'Hondt system. I am sure that the noble and learned Lord the Lord Privy Seal would not want to see such a system applied to the appointment of High Court judges.
It is essential for the Government to take this away and look carefully not only at whether we may be creating a climate of jeopardy for the judiciary or whether potentially we may be undermining the existing stability of the judicial process, but whether we may be introducing something that will have a knock-on effect, thus further destabilising those who are having foisted on to them the responsibility to agree to the terms of the appointment of High Court judges.
I have set out my logical and serious arguments for this amendment. I do not want to spoil the case with the stark truth; that is, with my personal perception of what is going on. But throughout our consideration of the Bill, I sense that something may be encapsulated within it that is designed to weaken the traditional links between Northern Ireland and the rest of the United Kingdom and to provide a high-speed highway for links with the Irish Republic.
In respect of the judiciary and of judges of the High Court, I hope that the noble and learned Lord the Lord Privy Seal will do his best to set my mind at rest by assuring me that the provisions contained in the Bill are not simply the means by which to regularise a process that is now secretly under way; rather, that those in the Irish Republic both have been and are being consulted in respect of judicial appointments in Northern Ireland. We shall return to the matter at other points in the Bill where, for no good or accountable reason that I can think of, special consideration is to be given to bodies within the Irish Republic which are not helpful either in a practical sense or in any sense, given the disquiet that such matters can cause in Northern Ireland.
The Lord Privy Seal will do us all a service if he can let me know on which occasions in recent times consultation has been held in respect of the appointment of High Court judges either with government Ministers or perhaps, more discreetly, through the Law Commission. We need to know exactly what is the level of liaison and whether the form of appointment that has been outlined in the Bill before us is to facilitate it even further.
I wish to raise one or two other matters. In Grand Committee on 11th June, the noble Baroness, Lady Scotland, indicated at col. CWH13 of Hansard that the implementation of the Bill and its various elements would take place in stages. I do not wish to stray on to matters which will be discussed later, but my own experience suggests that there has been precipitate activity in the Northern Ireland Office and that matters which are only just at the consultation stage are being overridden by the implementation process. To put it in colloquial terms, someone is at his work.
I want to believe that what we achieve in terms of judicial appointments will be transparent and secure; that it will not be open to question or the kind of conflict that we have seen—I say this with some sadness—in terms of the appointment of the Chief Constable. That kind of conflict endangers everything that we in Northern Ireland have struggled to put in place. I cannot believe that that is the objective of the Bill. I know that your Lordships would not allow its objective to be the damaging or undermining of the Belfast agreement, which is still in its infancy.
But we have seen this happen from Weston Park to more recent events in Northern Ireland. We have seen a sleight of hand that is hugely disturbing for those of us who have to live with the situation in Northern Ireland. It is for that reason—returning to the issue of High Court judges—that I and most noble Lords want an assurance that the process will be transparent and not one which is so flawed that it will create further distrust and destruction in Northern Ireland. I beg to move.
My Lords, the noble and learned Lord the Lord Privy Seal was kind enough to write to all noble Lords who took part in the Grand Committee proceedings and to commend the quality of their contributions. We are all grateful for that. We recognise the noble and learned Lord's touch in so doing, and we are grateful for it.
High among the matters that were referred to by many noble Lords in the course of the Grand Committee proceedings was a recognition of the extraordinary quality of the performance of the judiciary in Northern Ireland over the past 30 years and more. There was no dissenting voice. I have far less experience than many noble Lords who took part but, nevertheless, I was able to say that in the years when I had responsibility as Secretary of State, and before that as a Law Officer, I never heard it seriously contended that the judges were other than wholly impartial and showed the highest degree of judicial integrity.
What I want to say in support of the noble Lord, Lord Maginnis, is limited to this: the High Court judges are the cornerstone of the judiciary. The compliments paid to the judiciary as a whole extended right across the board, to the resident magistrates as well as to the higher ranks of the judiciary, but the High Court judges are the cornerstone. They undertake the Diplock hearings, where they are the judges of fact as well as of law, sitting without a jury in cases where that is necessitated by what is still called "the emergency". Their jurisdiction extends to the highest and most serious offences and their powers of sentence extend to sentences of life imprisonment and extremely long finite sentences. They exercise the function of judicial review, which is always extremely important. I tend to think that that is more difficult in Northern Ireland, with its special circumstances, than elsewhere in the United Kingdom.
There is a character distinction to be made between the High Court judges and the remainder of the judiciary which should be reflected in the provisions in the Bill for their appointments. I do not endorse everything that has been said by the noble Lord, Lord Maginnis. I do not dissent from what he said latterly because I understand his suspicions. I do not advance what I am saying in support of him as an endorsement of his suspicions, but I warmly endorse his anxieties about the means of appointing the small body of High Court judges in Northern Ireland on the recommendation of the First Minister and Deputy First Minister acting together. The High Court judges should be separated from their jurisdiction.
We shall come back to this issue again in other amendments and there will be other opportunities to reflect on the Judicial Appointments Commission. But there is an important character distinction. If I may put it this way, you will know it when you see it. I have seen it for quite a long time. I therefore support the amendment.
My Lords, I rise to express my concern at the Bill as it now stands. I read the proceedings in Grand Committee. I was not persuaded about the distinction between judges of the Court of Appeal and High Court judges in this respect. If I recall correctly, the point was made that a judge of the Court of Appeal is a Privy Counsellor. I did not attach any importance to that in that context.
The noble and learned Lord, Lord Mayhew, had much longer experience than I had as Attorney-General. I visited Northern Ireland frequently every few weeks for the purpose of meeting the judges and talking to them—I always had a meeting with the Lord Chief Justice—all in the interests of ensuring that I, as an outsider, knew a little of what was happening.
The problem—I hope that the Government will listen to this point—is that you have here a small core of very high quality judges. That is beyond argument. Secondly, they carry out their very difficult functions as High Court judges, sitting as judges both of law and of fact in Diplock cases. It was my function and that of the noble and learned Lord, Lord Mayhew, when he was Solicitor-General to take away from a number of people each week their right to trial by jury if they were alleged to be concerned with offences under the schedule. I was always conscious of the high quality of the judges who exercised that onerous responsibility as judges of fact and of law in criminal trials.
The problem that has not so far been canvassed is that judges of the Court of Appeal—to my astonishment—are substantially interchangeable with High Court judges. Judges of the Court of Appeal sit to hear ordinary trials that a High Court judge would normally hear. There is a very small number of judges of the High Court and above in Northern Ireland. It is sometimes difficult to find someone to hear a case: he may already have heard the judicial review, and then his function is to hear either the main trial or the trial in the Court of Appeal. Therefore, to my surprise, there is a much greater degree of interchangeability than one would find in an English or Welsh jurisdiction.
Likewise, High Court judges sit in the Court of Appeal, but it is the fact that it happens the other way round that causes me concern—although it is not unknown for even the Lord Chief Justice to take a trial from time to time in various parts of England and Wales, but it is unusual to say the least. Therefore, I ask the Government to consider carefully what is the real basis for this distinction. I am concerned, as I was when I read the debate that took place in Committee.
My Lords, I want briefly to express my full support for the case made by my noble friend Lord Maginnis. The noble and learned Lord, Lord Mayhew, has calmly and accurately illustrated the enormity of what the Bill sets out to do. To illustrate the point, if the Bill were to apply in Great Britain to England and Wales, we would have the Prime Minister and the leader of the Conservative Party appointing and sacking Her Majesty's judges. However skilfully some may try to dress the matter up and to camouflage it, that is essentially the problem.
My noble friend Lord Maginnis is perhaps more hopeful than I. He said that there could be a change within 10 months at an Assembly election. The general view has been expressed by the news industry—I do not always uphold its views but there seems to be a conclusion across the board—that there will be a change of parties, so that without any reflection on the integrity of those who might be appointed, according to the polls we could have a First Minister and a Second Minister who were even more opposed than at present.
The problem is that they would have to act jointly. I can hardly see the Prime Minister and the Leader of Her Majesty's Opposition acting jointly on a matter as fundamental to British justice as the proposal in the Bill. The appointment of judges would simply become a matter of conflict between the First Minister and the Second Minister. As has been implied and stated, instead of judges being appointed on merit alone, we would end up with a bargaining situation between the two Ministers: "You get one, and I'll get one", without any regard to merit. That is the horrifying thing about this provision.
I feel strongly that High Court judges must not under any circumstances be made pawns in a political game, as the Bill proposes.
My Lords, I am straightforward in my support for the amendment. My noble and learned friend Lord Mayhew and the noble and learned Lord, Lord Morris of Aberavon, have stated very clearly the seriousness of the amendment and of the situation of the eight High Court judges in Northern Ireland. There is a strong case for the Government to do some rethinking.
To touch on the politics of the speech made by the noble Lord, Lord Maginnis, this should be a straightforward technical Bill devolving power in regard to the judiciary and the Northern Ireland judicial system. But, unfortunately, too great a reference to politics has been introduced, unnecessarily, in the form of overstatements and over-actions in different parts of the Bill. A great deal of this was discussed in Committee. I have no intention at this stage of going over any of the arguments. I hope that the Government will realise that they are hearing arguments concerning the small print politics included in the Bill which need not have been there.
My Lords, I hope that I shall be able to give noble Lords greater assurance than we seem to have been able to manage to date. I say to the noble Lord, Lord Maginnis of Drumglass, that the Government have given these issues very careful consideration. We too want a transparent system which generates the trust that is necessary to make the Bill work.
These amendments were considered both in another place and in Committee. The intention is to give High Court judges the same appointment procedures and tenure as the Lord Chief Justice and the Lord Justices of Appeal. I regret to say that the Government have not been persuaded by the debate on the issue so far. Perhaps I may recite some of the reasons why.
First, the review was clear. The Judicial Appointments Commission should appoint all judges up to and including High Court judges. I do not depart for one moment from the warm endorsement given to the judges by all noble Lords in Grand Committee, and reiterated quite properly by the noble and learned Lord, Lord Mayhew. That was a unanimous view.
I agree with the noble and learned Lord, Lord Mayhew, that the High Court judges are one of the cornerstones of the judiciary and that they have had, to date, the character and distinction which mark them out for the proper role. All of those who have been burdened with that office in Northern Ireland have discharged the duty with distinction. These changes in the structure do not seek to change any of that. The case for excluding the most senior members of the judiciary from the remit of the Judicial Appointments Commission has not been made out, we respectfully suggest, for the High Court judges. We are looking to the future at what will be the next structure once devolution takes place.
The Chief Justice and the Lord Justice of Appeal are members of the Privy Council, as has been rightly noted by a number of noble Lords, not least by my noble and learned friend Lord Morris. But there is an important distinction. The Lord Justices of Appeal are members who potentially have responsibilities beyond Northern Ireland jurisdiction. This has not so far made much demand on their time, but they could be called on to act as Privy Counsellors in the future. That is perhaps more likely now, given the Privy Council's role in determining devolution matters. The issue is not simply whether they have done so in the past. They retain that potential and will do so in the future.
The Government agree with the review that it is appropriate to differentiate at this level of the judiciary. That line was taken with Scotland, where appointments and removals at the equivalent level are devolved. The amendments would remove that provision.
I know that there is concern. The noble Lord, Lord Maginnis, talked about Buggins' turn for judges. Buggins has never lived in the courts of our country and I do not think that he is going to get there now.
Clause 5 makes it plain that merit is the only criterion that will be operated. Subsection (2) says:
"Only a person selected by the Commission may be appointed, or recommended for appointment, to a listed judicial office".
Subsection (7) says:
"The First Minister and deputy First Minister must, on being informed by the Commission of the outcome of the reconsideration of its decision, appoint, or recommend for appointment, the person selected by the Commission after the reconsideration".
Subsection (8) says:
"The selection of a person by the Commission to be appointed, or recommended for appointment, to an office (whether initially or after reconsideration) must be made solely on the basis of merit".
If the First Minister and Deputy First Minister cannot agree on the commission's first recommendation for appointment, they must accept the commission's second recommendation, as set out in Clause 5(7). It is plain that the Lord Chief Justice will have a vested interest in making sure that the judges so appointed are of the highest possible calibre so that the high standards that have always prevailed in Northern Ireland will continue.
As I said in Grand Committee, the Lord Chief Justice of Northern Ireland currently makes a significant contribution to the deliberations on appointment, because he has the most intimate knowledge of Northern Ireland, its judiciary and those who seek proper judicial office. My noble and learned friend the Lord Chancellor makes no bones about the reliance that he places on the Lord Chief Justice's good judgment.
I hope that noble Lords agree that the structure that we have put in place for High Court appointments is robust. Not only that, it underlines the importance of merit continuing to be the only criterion that will determine office—not Buggins' turn or political interference, but real quality. That is what Northern Ireland needs and has always had. The Government are determined that Northern Ireland will continue to benefit from that.
Of course I understand the anxiety when we chart a new course, but we have to have a little courage and trust. The judiciary is well supported by a vigorous independent Bar and legal profession, which is drawn from and reflective of the community as a whole. Those good men and women have been trusted to date and the Government feel that they can be trusted in the future, together with a proper structure that will support them and enable them to come to the right decisions.
The noble Lord, Lord Maginnis, asked again about commencement. Clause 86 sets out the position succinctly. It says:
"The preceding provisions of this Act (with the Schedules) shall not come into force until such day as the Secretary of State may by order appoint".
Subsection (2) says:
"An order may appoint different days for different purposes".
We shall be able to look at the right time for these provisions and set that time for implementation when all is ready. I assure noble Lords that my noble and learned friend the Lord Chancellor and this Government are as jealous as anyone to maintain the integrity of the judicial system in England and Wales and, as it should properly extend, in Northern Ireland.
My Lords, that is not the proper interpretation of Clause 5(3).
My Lords, Clause 5(3) enables the First Minister and Deputy First Minister, acting jointly, to require the commission to add an extra person to that which needs to be appointed. It would be preferable if I could explore the issue further and come back with a fuller explanation. My interpretation is that the subsection would not enable the First Minister and Deputy First Minister to oblige the commission to recommend someone who would not properly be appointed in accordance with the normal procedures. I shall certainly come back to that.
My Lords, perhaps I can fill in a little time while the noble Baroness gets some advice. It would seem extraordinary if we were asked to vote on the issue when the noble Baroness cannot explain the meaning of the clause and says that it does not mean what it appears to mean, but that she does not know what it means.
My Lords, if there is a vacancy, the First Minister and Deputy First Minister can require the commission to select a person, but it is for the commission to decide whom it recommends. The First Minister and Deputy First Minister cannot specify that they want, for example, the noble Lord to be selected. They can simply say that they want someone to be selected for the post. That is my understanding. They cannot identify the person.
My Lords, before the noble Baroness sits down—and perhaps to fill in a little more time—I have a further question. In Committee I asked whether she had any information about the extent to which Lords of Appeal and Lord Justices of Appeal in Northern Ireland had served in the Privy Council in an English jurisdiction. Not surprisingly, she was not able to answer at that time. She said today that the responsibility has not made great inroads into their time. I wonder whether it has made any inroads.
My Lords, there has been the potential for that, but it has not happened. We did a quick trawl on this. In 1997, the Lord Chief Justice of Northern Ireland was invited to sit as a Privy Counsellor in a particular matter. Regrettably, his other commitments made it impossible for him to sit. Requests can be made, but it depends on whether judicial officers are free to sit on the Judicial Committee of the Privy Council on a particular date. The important issue is that the potential is there. They are invited to sit from time to time, subject to availability. As I said earlier, it may become more important to have someone with a proper understanding of the worries and concerns of Northern Ireland when the Privy Council comes to deal with devolved issues, as will happen in future. One can envisage that there may be a greater call on their time in the future than there has been so far. They will obviously sit as just one of a number.
My Lords, I am grateful for that explanation. It is obvious that, in practical terms, they have so far not acted outside their jurisdiction. That is therefore not an argument that should unduly influence us. However, I am finding it difficult to follow the Privy Council argument itself. It is certainly an argument for making Lord Justices of Appeal Privy Counsellors. However, it is not an argument that is directly relevant in distinguishing the form of appointment of High Court judges who may be asked to perform within Northern Ireland precisely the same functions as those performed by Lord Justices of Appeal. I fear that the Privy Council argument is a complete red herring, or I may be unduly dim-witted and cannot understand it.
My Lords, I would never suggest that the noble and learned Lord is dim-witted or anything of that sort. On this occasion, however, I would say that he has perhaps failed to see the force of the arguments that we are putting forward. Perhaps I should make those arguments a little more clearly to assist him. As I said, the Lord Chief Justice has been asked on one occasion. Before 1997, however, previous Lord Chief Justices sat as Privy Counsellors. The noble and learned Lord wanted in particular to know what has happened since 1997, and that is our understanding of the situation.
I have emphasised that, in future, the Judicial Committee of the Privy Council will sit to rule on devolution issues, possibly including whether the Assembly's legislation is within the competence of the devolved Administration. I am sure that the noble and learned Lord, Lord Morris, will agree that it would be important to ensure that those sitting in the Privy Council on such matters have some expertise and knowledge of those matters. Whereas they currently form part of a pool of people who can be drawn upon to sit in the Judicial Committee of the Privy Council, subject to their availability, it is particularly important that those with particular knowledge are available to assist the Privy Council on devolution issues.
It is a distinction because of that important potential to sit on broader jurisdictional issues. It also precisely mirrors the line taken in Scotland. There is therefore a certain symmetry between the rules that we have put in place in one part of the United Kingdom and those that we have put in place in another. I know that Northern Ireland has always been very anxious about parity of treatment. There is parity in the rules that we have put in place for Northern Ireland and for Scotland.
My Lords, I hope that the noble Baroness will forgive me, but she has managed—perhaps because I do not have a legal background—to magnify the confusion that I felt when I arrived here today. Her argument on the role which Privy Counsellors may have to play in deliberating on devolved government and devolution issues seems to be self-contradictory. Is she saying that our High Court judges will not be Privy Counsellors although they will have to adjudicate on devolution issues in Northern Ireland? Or is she saying that judges who have a competence throughout the United Kingdom will be required to adjudicate on devolution issues in Northern Ireland? As she can cite only one occasion when a Lord Chief Justice has been required to serve as a Privy Counsellor, and no occasions on which a Lord Justice of Appeal has been required to do so, is it likely that the services of High Court judges will be called upon first? I am beginning to wonder whether the whole issue is an absolute and total red herring and has little to do with the issue that we are trying to resolve.
My Lords, I am happy to assist the noble Lord. The Judicial Committee of the Privy Council will sit from time to time to determine a variety of issues such as those affecting the Commonwealth and countries in which the Judicial Committee is the final court of appeal. Additionally, it will now have jurisdiction in relation to devolved matters. When the Judicial Committee of the Privy Council sits, it will be able to draw upon any number of Lord Justices of Appeal or Lords of Appeal in Ordinary who are fit to sit in the Privy Council. The Lord Chief Justice of Northern Ireland is one of those. When an issue relates particularly to devolution, it may be particularly important to ensure that the complement of judges sitting to hear that issue possess some knowledge of that subject and its history. Such judges may therefore be drawn from the pool of judges to sit on the issue thereafter.
High Court judges are not Privy Counsellors and cannot be called to sit as a member of the Judicial Committee of the Privy Council. All judges in Northern Ireland might have to decide devolution issues. However, the Privy Council is the final Court of Appeal on such issues. I hope that that explanation is a little clearer.
My Lords, the answers that we have been given today are not sufficient to satisfy us. They are not sufficient in relation to the Privy Counsellor issue, and they have not even attempted to provide the assurance I requested on the role of the Irish Republic. Consequently, and because the situation in Northern Ireland is currently in jeopardy, I feel that I would be failing in my duty if I did not press the issue to a Vote.