Justice (Northern Ireland) Bill [HL]

– in the House of Lords at 3:50 pm on 3rd February 2004.

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Clause 1 [Transfer to Lord Chancellor of functions relating to Judicial Appointments Commission]:

Photo of Lord Maginnis of Drumglass Lord Maginnis of Drumglass Crossbench

My Lords, I sometimes think that, now that the nation is in the mood for inquiries, it would be exciting to have an inquiry into what intelligence provoked the Government to bring a Bill of this kind to the House. It has been brought to us in its present form for the second time in two years.

In Committee, when I spoke on Clause 1, I hoped that somehow I would be enlightened about the Bill. Sadly, that was not the case. I accept that the Tory amendment relating to the Lord Chancellor was accepted, but, as the noble Lord, Lord Filkin, knew of and alluded to proposed changes in the role of the Lord Chancellor, I have to ask what was really achieved by that concession.

My party is opposed to the whole concept of devolving judicial appointments, especially, I emphasise, the appointment of our 17 High Court judges, as it does not go hand-in-hand with the devolution of responsibility for criminal justice. The Criminal Justice Review saw the devolution of judicial appointments happening only in the context of the devolution of criminal justice. They are two aspects of the same issue, so why separate them? One recalls that, at Second Reading, the noble and learned Lord, Lord Hutton, indicated that the review had shown that something like 77 per cent of the population had expressed confidence in the fairness of judges and magistrates. Why, then, the urgency?

I ask that in the light of the Government's promise that none of it would happen without broad support from the political parties in Northern Ireland. The noble Lord, Lord Filkin, has written to me, and I am grateful for his correspondence. However, I am unhappy that he has confirmed the reason why the Government broke that promise. Although the noble Lord does not spell it out, the reality is that, at Weston Park, where we went to meet the Prime Minister and the Secretary of State for Northern Ireland in good faith, a nasty little deal was done with Sinn Fein, leading ultimately to the Joint Declaration. I cannot say that political parties in Northern Ireland were not properly consulted—they were not consulted at all about some of the important points.

With no devolution of responsibility for criminal justice, we would be content for Northern Ireland to be part of whatever emerges with regard to a Judicial Appointments Commission for England and Wales. Does the noble Lord foresee the composition of the commission for England and Wales having the same balance as that for Northern Ireland? If not, why not?

I end, as I began, by questioning the intelligence behind what is happening with the Bill. The one thing that we see again and again in Northern Ireland legislation is an entrenchment—a re-entrenchment—of the things that derive from sectarianism. The overall interests of the community at large are ignored—sometimes one tradition in the community, sometimes another—and the overall effect is that the community as a whole in Northern Ireland suffers from the compulsory re-entrenchment of sectarianism that is built into every Bill that the Government bring forward on such issues. I beg to move.

Photo of Lord Glentoran Lord Glentoran Conservative 4:15 pm, 3rd February 2004

My Lords, although I have a lot of sympathy with the point made by the noble Lord, Lord Maginnis of Drumglass, and a lot of sympathy with his aversion to the Bill as a whole, I do not share all of that aversion. Were the noble Lord to divide the House, I would not feel able to support him in the Lobbies. However, I have made the point several times that I disagree strongly with the timing of the Bill and many of the issues in it. We will come to those issues later.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I am glad of the opportunity to respond to the two questions raised by the noble Lord, Lord Maginnis of Drumglass, on the clause. One is, "Why now?", and the other is, "What is the genesis of some of the measures?".

The Justice (Northern Ireland) Act 2002 provides for the Judicial Appointments Commission to be established after the devolution of responsibility for justice matters to the Assembly. The purpose of the Judicial Appointments Commission is to enhance the process for judicial appointments. I hope that the House will agree that bringing forward the establishment of the commission should, in principle, be welcomed as part of that process. I shall explain why I believe that it does.

Speaking personally, I am confident that the commission will make an important contribution to building greater public confidence in the Northern Ireland justice system, although I know that, as yet, the noble Lord, Lord Maginnis of Drumglass, is not persuaded of that. We seek to strengthen the independence of the judiciary, which is essential to any justice system, perhaps especially in Northern Ireland. Section 1 of the 2002 Act states:

"Those with responsibility for the administration of justice must uphold the continued independence of the judiciary".

I should like to spell out in a little more detail the slightly complicated issue of which aspects of the Bill are being brought in now and which are being brought in subsequently. That is, perhaps, the first time that we have done that, and it may assist, even if it does not set the noble Lord's mind totally at rest. Our position is that the commission will stand on its own merits. First, it will enhance judicial independence. For the first time in Northern Ireland, we will have a statutory mechanism separating the selection of persons for listed judicial offices from the Ministers who appoint or recommend for appointment. I am sure that noble Lords will agree that the separation of powers is a keystone of democracy and should be vigorously pursued.

Secondly, one of the tasks of the commission will be to encourage diversity in the judiciary in terms of gender balance and the representation of those from ethnic communities. We discussed those issues in Committee. It is an important objective, and there was strong support for it in our earlier discussions, subject to the overriding question of merit. There is sense, therefore, in getting on with it.

Thirdly, the establishment of the commission with responsibility for the appointment of the judiciary is in keeping with the broad thrust of government policy. There is already a commission in Scotland; one is proposed in England and Wales; and the 2002 Act provided a statutory one ahead of the pack in Northern Ireland. The Bill allows that part of its role to be brought into operation earlier than might otherwise be the case.

Finally, political interference in the appointments process of judges is to be guarded against, and the commission will have a strong safeguard. We shall talk more about that later. The Lord President and I have had useful discussions with the noble Lord, Lord Glentoran, on some of those issues, and I hope that the correspondence has clarified some of the measures in the Bill and when they will be implemented.

For the record, I shall now give a little more detail. The Bill provides for the establishment of the Judicial Appointments Commission before devolution by transferring to the Lord Chancellor functions in relation to the commission that the First Minister and the Deputy First Minister would have had, were devolution to have happened. We are not in a devolved state, so the Lord Chancellor takes over functions regarding the Judicial Appointments Commission. The Lord Chancellor will appoint commission members, and the commission will be required to select a person for appointment to a listed judicial office.

The Lord Chancellor will also have the power to require the commission to reconsider its decision as to the person to be selected, and to deal with the outcome of that reconsideration. There are also a range of consequential functions, such as receiving copies of the annual report, making grants to the commission, and so on.

Photo of Lord Molyneaux of Killead Lord Molyneaux of Killead Crossbench

My Lords, how on earth can we have what has been described as a more acceptable judiciary—if we get devolution—if we are to revert to the position stated in the Bill that the First Minister and the Deputy First Minister, working together, shall appoint Her Majesty's judges, and the same First Minister and Deputy First Minister shall dismiss Her Majesty's judges, if they feel so inclined? Is there any hope of a neutral and widely respected judiciary? Does that now depend on our not ever having devolution? When devolution is brought back, we shall bring back the divisive factor of the First Minister and Deputy First Minister appointing and dismissing judges.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, neither of those propositions is true. We shall come to those issues in subsequent parts of our consideration on Report, when I shall be pleased to set out in detail why they are not true. At this point, I shall address the amendment of the noble Lord, Lord Maginnis.

The Lord Chancellor, unlike the First Minister or Deputy First Minister, already has the power to recommend appointments to a listed judicial office. Therefore, all that needs to be done is to ensure that in making those recommendations and appointments, the Lord Chancellor acts on the recommendation of the commission. I am simply explaining how technically the Bill puts the Lord Chancellor in a pre-devolution position. The commission will have another role under the Justice (Northern Ireland) Act 2002 later on when devolution takes place, which is to advise the First Minister and Deputy First Minster on the procedure that they should adopt in formulating a recommendation to the Prime Minister. We shall come to those issues later today.

The appointments of Lord Chief Justice and Lord Justice of Appeal will continue before devolution to be made as they are now. Appointments to the office of High Court judge will also still be made by Her Majesty on the recommendation of the Lord Chancellor. I hope that it will be reasonably clear that the functions of the commission in selecting persons to office up to and including High Court judges will be activated prior to devolution of responsibility for judicial functions. The commission's other function, however, in providing advice in relation to the formulation of recommendations for appointment to Lord Chief Justice or Lord Justice of Appeal will not be commenced at this stage. Why does that matter? The Judicial Appointments Commission fulfils two functions. First, it puts a transparent process in place for the appointment of judicial office holders, which we believe strengthens the independence of the judiciary. Secondly, it can begin work on a process of seeking over a period of time to work towards an appropriate process, subject to merit, to increase the diversity of the judiciary.

I also affirm that there has been no breach of promise. The 2002 Act was crafted in the context of hoping and expecting that devolution was about to happen. Unfortunately, devolution is suspended, but on this day we are seeing the start of discussions around the Belfast agreement, which we all hope will lead to the possibility of a recommencement of the Assembly and devolution, but no one knows that for certain. We are, therefore, in a strange limbo land at present. There is benefit, for the reasons I have given, in making progress.

It is also not true that the nine measures that came out from the Hillsborough agreement with relevance to the Bill being discussed today—specifically the issues around judicial appointments—were not the product of pressure from Sinn Fein. Other political parties were interested in those issues, not Sinn Fein. It is not the right way forward for Northern Ireland affairs to be made as part of the Judicial Appointments Commission for England and Wales. We want to move towards more self government in Northern Ireland, subject to a time and place process. I very much hope that the reverse of the entrenchment of sectarianism will be the product of such a process.

There was consultation with the parties. The Bill's contents were discussed in detail with the local political parties at Hillsborough, including the Ulster Unionist Party. I assure the noble Lord, Lord Maginnis, that the devolution of justice and judicial appointments should go hand in hand. The JAC will make its recommendations to the Lord Chancellor, and the provisions on senior judicial appointments and judicial removal will not be commenced before justice is devolved to Northern Ireland.

I hope that I have done better than last time in addressing the points raised by the noble Lord, Lord Maginnis.

Photo of Lord Maginnis of Drumglass Lord Maginnis of Drumglass Crossbench

My Lords, I am grateful to the Minister for addressing the points that I raised. I note that I did not have much competition on this amendment.

Will the Minister clarify a point? When he talked about the Hillsborough round of talks, he seemed to say, "and" the Ulster Unionists, as though somehow there had been encouragement or pressure from the Ulster Unionists to devolve judicial powers. He and I both know that that was not the case. The Ulster Unionist Party was totally opposed, and will remain totally opposed to the devolution of criminal justice responsibilities until there is absolute certainty of stability in Northern Ireland. I hope that the noble Lord will confirm that so that there is no confusion in anyone's mind that somehow my party is of a mind to have early devolution of criminal justice.

I have one or two other very brief points to make. I concur with my noble friend Lord Molyneaux, if not for the same reason, when he alludes to the separation of powers. It is nonsense to talk about the separation of the judicial process from the political process, and then to suggest that the First Minister and Deputy First Minister will be indulging in what can only be Buggins' turn. It will be nothing else. If that does not divide the judicial process along sectarian lines in Northern Ireland, I simply do not know what does.

Those are my reasons for opposing everything that I see in the Bill as being not only unhelpful but also dangerous. However, I am not one to waste the time of the House. I have listened to what the noble Lord, Lord Glentoran, has intimated—would the Minister like to respond?

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs) 4:30 pm, 3rd February 2004

My Lords, out of courtesy I shall respond to the specific point made by the noble Lord, Lord Maginnis, about the Ulster Unionist Party and Hillsborough. I responded to whether there had been consultation and involvement of political parties in the Hillsborough agreement and I commented on the fact that the Ulster Unionist Party had been involved in the Hillsborough discussions. I made no comment about its stance on the early devolution of justice. I hope we agree in part, if not in totality.

Photo of Lord Maginnis of Drumglass Lord Maginnis of Drumglass Crossbench

My Lords, I accept what the noble Lord says. I did not want there to be any doubt. I may go into a public house, but I shall not be one of those who leaves drunk. Our position is much the same in regard to the Ulster Unionists; we may have been involved in the talks, but that does not indicate any concurrence with what has been brought forward against our wishes. However, as I was about to say before the Minister intervened, at this stage I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 [Membership of the Commission]:

Photo of Lord Glentoran Lord Glentoran Conservative

moved Amendment No. 2:

Page 1, line 8, at end insert—

"( ) In section 3 of the 2002 Act (makeup of the Commission)—

(a) in subsection (5)(a), for "five" substitute "six", and

(b) in subsection (5)(c), for "five" substitute "four"."

Photo of Lord Glentoran Lord Glentoran Conservative

My Lords, before speaking to Amendment No. 2, I thank the Lord President for a meeting that we had last week in her office, which was very helpful. I also thank her officials, some of whom are in the Box today, for the number of meetings that I have had with them and for the good will and help that they have given us while preparing amendments for today.

We have discussed Amendment No. 2 for some considerable time. We discussed much of it when dealing with the previous Bill and we have been over it in Committee. For me, the Government's proposals in relation to this item may seem like only one small step, but it is a step in the wrong direction, towards more politicisation in the appointment of Northern Ireland judges. Noble Lords will find that all my amendments and all my arguments will focus on trying to prevent the Government increasing politicisation of the judicial system in Northern Ireland as opposed to decreasing it. That is what they declare they are doing, but I do not believe that is what they are doing.

All the changes that are being made mount up, and cumulatively we are faced with a system which does not guarantee judicial independence and which threatens the until now unimpeachable record of those judges who have dispensed justice in Northern Ireland thus far. If appointment is to be on merit, what possible basis is there for having an equal number of judicial and lay members on the Judicial Appointments Commission? The Secretary of State claims that eight out of 13 of the members are judicial professionals. That is misinformation because he includes the solicitor and barrister under that umbrella of judicial professionalism. As I understand it, those people do not take the judicial oath and are not normally considered to be part of the judiciary.

The noble Lord, Lord Filkin, also tried to claim that the lay members would in some way be vital in trying,

"to widen the diversity of the judiciary"—[Official Report, 15/1/04; col. 690], and would aid "public confidence" in the judiciary. We accept that there should be some representations from the lay community on the Judicial Appointments Commission, but while it hopefully plays a useful role in enhancing confidence in the judicial system, it also runs a real risk that political considerations will assume too great a prominence.

One matter that I believe has been missed by the Minister and his colleagues—particularly when I look at the make up of the suggested Judicial Appointments Commission for England and Wales—is that in Northern Ireland 95 per cent, or probably 100 per cent, of those who are likely to be appointed to the commission will be extremely politically sensitive, extremely politically active, and extremely politically aware. Without wishing to insult anyone in the kingdom, particularly in England and Wales, I suspect that a similar group of people from whom one could select members for the JAC for England and Wales, would probably contain fewer than 20 per cent and may be fewer than 10 per cent of people who would be politically sensitive to one party or another or to one issue or another in relation to appointments to the judiciary. A crucial plank in my argument is that it is quite wrong to overplay and to oversubscribe to the lay element on the Judicial Appointments Commission. I beg to move.

Photo of Lord Mayhew of Twysden Lord Mayhew of Twysden Conservative

My Lords, I adopt the argument of my noble friend Lord Glentoran in supporting the amendment. Ministers insist that the overriding and dominant criterion for the appointment of a judge shall be merit. Of course, that is right; that has to be so. The Bill stipulates that and it does so on ministerial instructions. It could hardly be otherwise if a non-politicised judiciary is the aim.

However, it is not enough for Ministers merely to proclaim that; they have to go further and in the language of Cranmer they have to "ensue it". That means identifying what constitutes merit and examining who is best fitted to discern it among the pool of likely candidates. I suggest that in that context merit includes displaying the judicial qualities of independence, integrity, impartiality, intellect, courage, courtesy and efficiency in the dispatch of business.

Therefore, the assessment of a candidate for those qualities surely has to be a specialised business. The reason is that those qualities, or the absence of them, will have been displayed when candidates have been seen at work—in action—whether as an advocate or as a judge. It is hard to see where a lay person can have as useful, or at least equally useful, a standpoint as a judicial person. The assessment by judges themselves must be the most reliable that is available. They will have reviewed the summings up, the sentences, the judgments and the transcripts of trials over which inferior judges will have presided; they will have seen how the candidates have performed. They will have observed the performance of advocates appearing before them, whether at first instance or on appeal.

It is true that the opinions of barristers and solicitors will go some way towards approaching the value of the experience of a judge in this context, provided that they are advocate solicitors or advocate barristers, which is not specified in the Bill. I respectfully suggest that a lay magistrate in Northern Ireland can have had very little experience that is relevant and I suggest that a lay person who is not a magistrate can rarely bring experience that is at all relevant. Lay people may ask themselves, "What can we bring?", and they will have to reply in the words of the well known hymn,

"Just as I am, I come".

That will be very nice, but what will it contribute, beyond what we misleadingly call transparency? In Northern Ireland there is some value in that, but there is also some danger. As my noble friend has said, I believe that it will bring the risk that certain attributes, quite extraneous to those judicial ones, that make for judicial merit, will be looked for by the public and disproportionately rewarded, most notably those of background and religion—where does the candidate come from?

I therefore endorse what my noble friend Lord Glentoran said in Committee. He said:

"The fact that the Lord Chief Justice and five judges could be outvoted on this commission can make no sense if one has the objective of maintaining that the judicial system be depoliticised and clear of political influences".—[Official Report, 15/1/04; col. 687.]

I would add that if we are to ensure the true predominance of merit as the criterion, the only reliable and safe way to do it is by putting the judicial members in the majority on the commission.

Photo of Lord Maginnis of Drumglass Lord Maginnis of Drumglass Crossbench

My Lords, it might be helpful to the House, in so far as I fully support the amendment of the noble Lord, Lord Glentoran, if I address some of my remarks to the next group of amendments, because—

Photo of Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton Government Whip

My Lords, is the noble Lord seeking to group and to debate all the amendments together or to debate this amendment and then move on? Members of the House may become confused about the point at which they should speak.

Photo of Lord Maginnis of Drumglass Lord Maginnis of Drumglass Crossbench

My Lords, I would not wish other Members to be in the same state as me; namely, one of confusion. The next group of amendments is not entirely mine. If the noble Lord, Lord Glentoran, intends to push this amendment to a vote, I would be happy to accede to the noble Baroness's point and combine the next group of amendments with this group.

Photo of Lord Glentoran Lord Glentoran Conservative

My Lords, I do not wish to group the next group of amendments with this one. I am quite happy to stay where we are.

Photo of Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton Government Whip

My Lords, in that case, we have clarified the position. At this stage, Members will speak to this amendment only.

Photo of Lord Maginnis of Drumglass Lord Maginnis of Drumglass Crossbench 4:45 pm, 3rd February 2004

Indeed, my Lords, I will do so. When we consider the next group, I shall be able to speak with much greater brevity.

The noble Lord, Lord Filkin, said in Committee:

"The further argument was made by the noble Lord, Lord Maginnis, and others that the lay members have no function at all, or they should have a function only if they are expert in some way in legal processes. I believe that that short changes the role of the commission".—[Official Report, 15/1/04; col. 690.]

I could not quite understand what the noble Lord, Lord Filkin, was intimating. I would have thought that expertise, no matter how little, was an absolute necessity. There would not be much point in employing a sausage maker to repair my motor car. Hence, it was difficult to follow his arguments, which appeared to be a series of unconvincing contradictions. He said that the system had proved itself over 30 difficult years. However, we have to ensure public confidence. I had thought that 77 per cent of the public has confidence in judges and magistrates. That point was conveyed in this House by the noble and learned Lord, Lord Hutton.

If lay people are involved in the Judicial Appointments Commission, they will be seen as "quango-ites". If 77 per cent of the public has confidence in judges and magistrates, not even 0.7 per cent of it would have confidence in many of those who are mostly unelected and often unelectable. Quango-ism in Northern Ireland has become a kind of covert profession. It is pretty much despised. There are exceptions in the form of some very able, publicly spirited people, but there are others whom I would fear if they made up the lay element of a Judicial Appointments Commission.

When one comes to selecting those lay people, they will inevitably be selected because they are Protestant or because they are Catholic. However often I speak about this Bill, I have to emphasise the sectarianising that is inherent in it. Some of us have worked a lifetime to try to reduce that in Northern Irish society.

I referred in Committee to the Minister's remarks on merit at Second Reading. She had said:

"Merit has been and will continue to be the overriding principle for judicial appointments".—[Official Report, 16/12/03; col. 1092.]

She said "overriding". Merit cannot be overriding if it is subject to one condition after another. That is exactly what we are hearing from government. The condition will be traditional balance in terms of only one criterion: Protestant or Catholic. I could never concur with that. My party has worked for years to try to eliminate it.

I shall draw attention to research paper No. 5 that was commissioned during the review of the criminal justice system. Page 60 states:

"The international models of Appointments Committees have varying degrees of similarity. Most feature a Chief Justice as Chairperson; representatives from courts, Bar Council and legal profession. When lay members are included they are chosen from individuals with a sophisticated knowledge of appointments procedure and legal issues".

I do not know how we can bring that kind of professional advice to the review of criminal justice. The Minister cannot argue that meritocracy and competency are overriding, while all those elements of sectarianism are being built in. It does not square up. That is the sad reality of the situation.

Photo of Lord Smith of Clifton Lord Smith of Clifton Shadow Minister, Northern Ireland Affairs

My Lords, I am somewhat depressed by the denigration of the contribution of the lay element to appointments. I always listen to the noble and learned Lord, Lord Mayhew, with great respect, but we should not be seduced by his mellifluous articulation of his points. His words smack heavily, as they have done before, of those of an eloquent shop steward for the legal trade union. There is no question that the balance that we have is the right one. Undoubtedly, the lay members will listen most assiduously to what the legal and judicial representatives say. However, selecting on the basis of integrity, knowledge, independence and all the other criteria referred to by the noble and learned Lord, Lord Mayhew, is not the preserve of the legal profession. Many of us feel that we can discriminate between those who possess them and those who do not. The noble Lord, Lord Maginnis, the noble Lord, Lord Glentoran, to some extent, and, in his most mellifluous way, the noble and learned Lord, Lord Mayhew, have rather over-egged the pudding in making their point.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, the amendment would increase the number of judicial members and decrease the number of lay members on the Judicial Appointments Commission. To some extent, it is surprising to be debating this amendment because the Bill does nothing to change the composition of the Judicial Appointments Commission which this House and another place passed into legislation nearly two years ago. That was a decision that Parliament made at that point in time, and I think it was the right decision. The composition was debated at length in both Houses during the passage of the Justice (Northern Ireland) Act 2002.

The 2002 Act reflected Recommendation 78 of the Criminal Justice Review which sought to have a careful balance in terms of the commission's membership. Indeed, as I made clear in Committee, out of a total of 13 commission members, eight will have knowledge of the law, legal processes and legal systems. I sought to say that there would be eight members of a commission of 13 who would either be judicial or legal professionals. It may well have been slightly condensed in the process of transmogrification. However, the point I was making was that there were eight people who were either acting as judges or who were professional lawyers.

Furthermore, the chairman of the Judicial Appointments Commission is the Lord Chief Justice himself. He is sitting on top of this apex, bringing all of the weight of his office, experience and intelligence to its functions. In that respect, the Judicial Appointments Commission in Northern Ireland is quite different from the system currently operating in Scotland and what is proposed for England and Wales. I make no issue with that—there are good reasons for where the 2002 Act positioned it, and we think that that is right. Therefore, we are slightly at a loss about why the question is being reopened at this time, given that we have had some good debates and have sought, through Parliament, to settle the matter.

Let me turn to a number of the points that were made in the addresses to the amendment. The noble and learned Lord, Lord Mayhew, is right to bring the issue of appointment on merit before us early in our proceedings. He said that Ministers proclaimed that this was the objective. Yes, they do, but we go substantially further than that—we enshrine it in the legislation. It spells out with absolute clarity that there is only one criterion for this Judicial Appointments Commission making a decision on a judicial appointment, and that is merit. In that sense, this goes way beyond proclamation—we are enshrining it in legislation. The commission is statutorily charged to behave in that way.

Identifying which candidates have judicial skills is clearly part of the job of the commission. Judicial skills are partly about knowledge of the law and partly about knowledge of judicial processes. They also include some of the other human skills needed to manage the judicial process in ways that build the confidence of the community that justice is being fairly done. Undoubtedly the judicial members of the commission will be powerfully positioned to have their arguments on some of those skills, but lay members may make a contribution when it comes to some of the other skills as well. Lay members will also make a contribution in terms of looking at the selection procedures—the advertising, recruitment and attraction of people—to ensure that a rich pool of talented candidates is coming forward for consideration by the panel.

I should also mark the fact that the Judicial Appointments Commission has a second role. It does not just make short-term decisions about judicial appointment. However—I repeat this so that the noble Lord, Lord Maginnis, is in no doubt about this—its secondary role in trying to promote a more diverse judiciary is subordinate to the appointment on merit. In other words, it only does those other things subordinate to merit, not the other way round, as I think it was being interpreted.

We had a good discussion on these issues in Committee, and it seemed to me that there was a strong measure of consensus. The judiciary in Northern Ireland, no different from that in England, is not, in gender terms, representative of society broadly. Therefore the commission has to think what can be done over five, 10 or more years to ensure that people of talent in all walks of life come forward. That is its second role. It is self-evident that a commission which has on it lay people with relevant experience will be very powerful. That was what I was meant when I referred in Committee to short-changing.

On sectarianism, the Lord Chancellor appoints the lay members of the Judicial Appointments Commission in the pre-devolution situation. They will be selected in accordance with the Commission of Public Appointments code of practice. In addition to having to swear an undertaking to uphold peace and justice, they must be able to command the confidence of a broad swathe of society in Northern Ireland and, by their stature and integrity, have demonstrated their ability to contribute to decisions in a non-sectarian way. While Scotland does not have the same level of sectarianism that Northern Ireland has, tragically, had, we have already seen a Judicial Appointments Commission in Scotland chaired by a lay member making good progress on addressing some of these issues, albeit in an advisory capacity. I think confidence is developing in Scotland in that respect.

We got it right when we established the composition in 2002, and we are right now to implement some, if not all, of the Judicial Appointments Commission's functions because we need to make progress in the areas I have outlined. I very much hope that the noble Lord, Lord Glentoran, will feel minded to withdraw his amendment.

Photo of Lord Glentoran Lord Glentoran Conservative

My Lords, I thank the Minister for his lengthy explanation. However, I do not really understand why the Government are sticking to their guns so strongly on this and they probably do not understand why I am sticking to mine. Neither the Criminal Justice Review—see paragraph 6.103—nor the implementation plan—see page 44—called for a majority of lay over judicial members.

I would be very satisfied if the Government would undertake that the casting vote was left with the Lord Chief Justice, but I feel that in the Province that I know and have lived in for many years, the climate is not right to have a commission to appoint the judiciary made up with a majority of non-judicial persons. I should like to test the opinion of the House.

On Question, Whether the said amendment (No. 2) shall be agreed to?

Their Lordships divided: Contents, 115; Not-Contents, 156.

Division number 1 Private Parking: Ports and Trading Estates — Justice (Northern Ireland) Bill [HL]

Aye: 113 Members of the House of Lords

No: 154 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the negative, and amendment disagreed to accordingly.

[Amendment No. 3 not moved.]

Photo of Lord Glentoran Lord Glentoran Conservative 5:09 pm, 3rd February 2004

moved Amendment No. 4:

Page 2, line 10, leave out subsection (2).

Photo of Lord Glentoran Lord Glentoran Conservative

My Lords, Amendment No. 4 is another amendment that we have already discussed at considerable length. In Committee we clarified the important point that the Lord Chief Justice who chairs the committee sits ex officio and is therefore not caught by the 10-year limit. The noble Lord, Lord Filkin, said that,

"on promotion to another tier of the judiciary, a person can have another opportunity to enter the judicial appointments commission".—[Official Report, 15/1/04; col. 695.]

If that is so, it would go far to meet our concerns as the high flyers will almost certainly be promoted through the system, typically from High Court judge to Lord Chief Justice or resident magistrate to county court judge. But if what the noble Lord, Lord Filkin, said in Committee is correct, what is the point of the statutory restriction as it will so seldom apply? In my view it is far from clear that sub-paragraph (1A)—I read it several times along with advisers—means what the Minister thought that it meant and I hope that it means. I await the noble Lord's comments on that point. I beg to move.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I am very glad to repeat and re-emphasise the explanation and the commitment that I gave in Committee in this respect. While the clause that we are discussing puts all judicial members on a level playing field regarding their terms of office—there seem to be good reasons for doing that both in principle and also because it was one element of the Hillsborough agreement—a lay member or a judicial member can serve five years as their first term. They are eligible to be reappointed for a second term, if that is the decision of the relevant appointing body. That second term can either be served directly subsequent to the first term or after a period of time has elapsed.

It is also the case—I again emphasise this, as I think I have said, and I may have also written to the noble Lord—that were a judicial office holder to be promoted, he or she is open to a further opportunity for appointment as they may then move into a different category. For example, if they move into the High Court, they would be open to a further opportunity for consideration and selection. In theory in extremis one can envisage the slightly bizarre situation in which a person who was promoted could end up serving on the Judicial Appointments Commission for 20 years. That is the theoretical extreme logic of the measure. However, I should be surprised if that occurred. As I signalled in Committee, there are good reasons for wanting turnaround while also wanting experienced people to serve on the body.

In essence I can give exactly the assurance that the noble Lord, Lord Glentoran, seeks. People may be reappointed to serve a second term in their existing role or be reappointed in a different capacity if they are promoted. Why is that? As I have signalled, it seems right in principle that both lay and judicial members should be on a level playing field as that was part of the Hillsborough agreement. I hope that having re-emphasised what I said in Committee, the anxieties of the noble Lord, Lord Glentoran, will be appeased.

Photo of Lord Glentoran Lord Glentoran Conservative

My Lords, I thank the noble Lord for that very clear explanation which I accept. Being rather churlish, I hope that the draftsmen and officials will reconsider the relevant phrasing to reassure themselves that future generations will interpret it correctly. The provision comprises only about three lines. It is rather difficult to interpret it correctly unless the relevant explanation in Hansard is attached to it.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs) 5:15 pm, 3rd February 2004

My Lords, I thank the noble Lord for giving way. If it will help our processes, I shall threaten to send him one of my tedious letters in which I shall spell out explicitly why we believe that we are right.

Photo of Lord Glentoran Lord Glentoran Conservative

My Lords, I thank the noble Lord for that. His letters are by no means tedious. I have received some in the past for which I am very grateful. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 5 not moved.]

Photo of Viscount Allenby of Megiddo Viscount Allenby of Megiddo Crossbench

My Lords, before calling Amendment No. 6, I must inform the House that, if it were to be agreed, I would not be able to call Amendment No. 7 in the name of the noble Baroness, Lady Amos, due to the rules of pre-emption.

Clause 3 [Duty of Commission to secure judiciary reflective of the community]:

Photo of Lord Maginnis of Drumglass Lord Maginnis of Drumglass Crossbench

moved Amendment No. 6:

Page 2, leave out lines 26 to 35.

Photo of Lord Maginnis of Drumglass Lord Maginnis of Drumglass Crossbench

My Lords, I return to the question of what is actually meant by the wording in the Bill. I do not care whether the relevant phrase is "representative of the community" or "reflective of the community". Clause 3 is entitled:

"Duty of Commission to secure judiciary reflective of the community".

We are told in new subsection (8) of Clause 3 that selection for appointment,

"must be made solely on the basis of merit".

A certain logic flows from that. If selection for appointment is,

"solely on the basis of merit", and we are not of the opinion that males are cleverer and more able than females or vice versa, or that black people are more able than white or coloured people or vice versa, or that Protestants are more able than Catholics or vice versa, new subsections (9) and (10) of Clause 3 are absolutely unnecessary. However—I do not need to emphasise this point much more—I and anyone who comes from Northern Ireland believes that this has to do with creating a sectarian trade-off—nothing more and nothing less. It is about creating a sectarian trade-off. I am as opposed to a sectarian trade-off as I am opposed—and have been opposed in my 20 or so years in public life—to sectarianism. I beg to move.

Photo of Lord Hylton Lord Hylton Crossbench

My Lords, when the noble Lord, Lord Filkin, replies to the amendment will he say whether there is a legal precedent for using the word "reflective"? He and I and other Members of the House probably have a fair idea of what is intended by the word but it would be slightly disappointing if a subsequent judicial interpretation showed that we were wrong.

Photo of Lord Monson Lord Monson Crossbench

My Lords, I too hope that the noble Lord, Lord Filkin, can clarify one or two matters when he replies to the amendment.

In the course of replying to Amendment No. 1, the noble Lord mentioned that the Government aimed to achieve gender balance in the Northern Ireland judiciary. Does that mean that where two equally well qualified candidates present themselves—one male and one female—the woman will always be chosen until such time, many years hence, when 50 or 51 per cent of the judiciary in Northern Ireland is female? I do not think that any other interpretation is possible but there may be one of which I am unaware.

Leaving aside the question of gender, what other characteristics are sought in the Government's ambition to achieve a judiciary "reflective of the community"? Both the noble and learned Lord, Lord Mayhew, and the noble Lord, Lord Maginnis, have assumed that religious affiliation will be the main criterion, judging by their earlier contributions this afternoon, but I wonder whether they are right. If a Roman Catholic Unionist—whether with a capital U or a lower case u—were to be proposed to fill the notional Roman Catholic quota, my guess is that he or she would be totally unacceptable to Sinn Fein and quite probably unacceptable to the SDLP as well.

Therefore, "reflective of the community" could only mean reflective of the political community, with 30 per cent of new appointments going to known DUP supporters—assuming they have all the correct legal qualifications—and 23 per cent or so going to Sinn Fein supporters and so on. Can the Minister confirm that that is the case?

Photo of Viscount Brookeborough Viscount Brookeborough Crossbench

My Lords, I support the amendment. Regarding the word "reflective", I am involved in the Northern Ireland Policing Board. When we chose members of the district policing partnerships, of which the noble Lord, Lord Maginiss, will be aware, we had to appoint people who were "reflective" of the community. The first issue to be taken into account was religion. That was not our choice, but, we were told, it was through the "political correctness" of the situation. That is how it will be done. The second issue was gender but the first was clearly religion.

I have one question for the Minister. If merit is the number one objective, how on earth can that be distorted by bringing religion or gender into it? That is not possible.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I thought that we had one of the best discussions on the Bill on such issues in Committee. I value the exchange that we had with the Opposition Front Bench, particularly with the noble Lord, Lord Kingsland.

I start by addressing Amendment No. 6, tabled by the noble Lord, Lord Maginnis, which would remove the requirement that is inserted into Section 5 of the 2002 Act by Clause 3 that the Judicial Appointments Commission should,

"engage in a programme of action designed to secure" a judiciary,

"reflective of the community in Northern Ireland".

I made it clear in Committee and shall do so again that the duty to engage in a programme of action is subject to the immutable principle of appointment on merit.

The Judicial Appointments Commission can make a decision only on which applicant is best for that judicial post. It can take no account of whether the person is a man or a woman; whether they are from one community or another; or whether they are of one ethnic group or another. The Bill could not be clearer. Appointment has to be on merit.

However, in our discussions in Committee we addressed the issue of the judiciary of Northern Ireland no differently from issues relating to the judiciary in Britain. If one looks at the composition of the judiciary in Northern Ireland—which I repeat is deeply impressive in very many respects in terms of its judicial skill and courage over some difficult periods of time—it is apparent that 87 per cent are men and 13 per cent are women. The question that faces society, which is the subject of this part of the Bill, starts from the premise that we talked about then: no one in the House believes that women are more stupid than men. Therefore, that begs a question: what is in the nature of the processes that leads to the disproportionate composition of the judiciary in Northern Ireland?

The nature of that discussion in Committee was that one had to ask the commission and others in Northern Ireland society—the Bar Council and the Law Society—to reflect on the nature of judicial careers, including the way in which people came forward for them, to see whether anything in the nature of those processes was likely to lead to a disproportionate composition. I shall not repeat the arguments for those who want to engage further. We have set out why the issue matters profoundly. I shall not weary the House with that again, but the issue is asking the commission what it can do to give leadership in civil society in Northern Ireland over a period of years to seek to bring about change.

I agree with the noble Lord, Lord Kingsland, who was clear that we are talking about actions that might take five, 10 or 15 years. But they are important to try to redress the composition of a judiciary that, while it is eminently skilled in what it does, is not reflective of the diversity of society. That was the essential issue and although in Committee I churlishly refused to accept the amendment tabled by the noble Lord, Lord Kingsland, about a continuing programme of action, I agree with him that that was what the issue was about. Therefore, we tabled Amendment No. 7 to make it absolutely clear, as the noble Lord, Lord Kingsland, invited us, that a programme of action by the Judicial Appointments Commission was necessary over a period of years.

Regarding the concerns raised by noble Lords, I gladly pay tribute to the reminder by the noble Lord, Lord Maginnis, of his lifetime opposition to sectarianism. We recognise how difficult that is in Northern Ireland and how that requires leadership and courage. But we are not putting the issue of sectarianism at risk by the Bill. Regarding the question asked by the noble Lord, Lord Monson, about what matters most, I said in Committee that one had to expect a judiciary, everything being equal, to be roughly reflective of society.

The greatest deviance in society is not community background but gender. That is my direct response. We do not know the exact figures for community background in Northern Ireland, but the best estimates suggest that probably around 35 per cent come from a Roman Catholic background and about 65 percent come from a Protestant background. That is not to say that there is anything fundamentally wrong or that there is perfection. But the last thing that the Judicial Appointments Commission is entitled to do is to make any decisions on appointments based on the community background of people. I am signalling that the issue matters most on gender, given my figures.

Regarding ethnicity, there is such a small ethnic minority population in Northern Ireland that there are no people on the judiciary from ethnic minorities, as they represent only 1 per cent of the population. They are small figures. It is not a situation of appointing people in order to achieve quotas. Quotas are illegal—as set out by the thrust of the Bill. Age is another issue that one might look at, but there is a limit to what might be achieved regarding age, given that holders of judicial office often require many years of experience. Therefore, one cannot expect a complete balance there of adult society, for obvious reasons.

The noble Lord, Lord Hylton, asked me about the terms "representative" and "reflective". We have changed the wording to "reflective" because the Liberal Democrats pointed out—although I cannot remember the context—that it was a better word. I stand by that because there is a slight risk that "representative" sounds as if a person on the Judicial Appointments Commission would be "representative" of the community and that would be the last thing that we wanted. All we are seeking is that the Judicial Appointments Commission is not totally male or female or totally Catholic or Protestant, but has a fair or as reasonable a balance as possible.

Regarding the point made by the noble Viscount, Lord Brookeborough, on district policing partnerships, I do not wish to go into detail about any such future programme of action, but it does require a root and branch inspection of the processes that lead to that type of outcome. It is nothing new. A whole range of public bodies have been doing that for 20 or 30 years—seeking to uphold appointment on merit, but nevertheless inquiring into the processes which may lead to a disproportionate outcome.

I hope that my reply has been helpful, and I apologise if it has been too long.

Photo of Lord Maginnis of Drumglass Lord Maginnis of Drumglass Crossbench 5:30 pm, 3rd February 2004

My Lords, I am grateful to the Minister for his response. It is what I expected. I shall have a moment to debate the matter further in the next government amendment. On that basis, I beg leave to withdraw my amendment.

Photo of Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton Government Whip

My Lords, I owe it to the noble Lord, Lord Maginnis, to point out that as the two amendments are grouped together there will be no opportunity to discuss the Government's amendment. The debate is concluded. The noble Lord may press his amendment to a Division or withdraw it, but there will be no more debate on either amendment.

Photo of Lord Maginnis of Drumglass Lord Maginnis of Drumglass Crossbench

My Lords, I apologise; I overlooked that. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Baroness Amos Baroness Amos President of the Council, Privy Council Office, Lord President of the Council and Leader of the House of Lords (Privy Council Office)

moved Amendment No. 7:

Page 2, line 26, leave out from "must" to end of line 35 and insert "at all times engage in a programme of action which complies with subsection (10).

(10) A programme of action complies with this subsection if—

(a) it is designed to secure, so far as it is reasonably practicable to do so, that appointments to listed judicial offices are such that those holding such offices are reflective of the community in Northern Ireland;

(b) it requires the Commission, so far as it is reasonably practicable to do so, to secure that a range of persons reflective of the community in Northern Ireland is available for consideration by the Commission whenever it is required to select a person to be appointed, or recommended for appointment, to a listed judicial office; and

(c) it is for the time being approved by the Commission for the purposes of this section.""

On Question, amendment agreed to.

Clause 4 [Appointment of Lord Chief Justice and Lords Justices of Appeal]:

[Amendments Nos. 8 to 12 not moved.]

Clause 5 [Removal or suspension from listed judicial offices]:

Photo of Lord Glentoran Lord Glentoran Conservative

My Lords, we have debated the issue at length and wonder why the Government have changed from their position in 2002. Why should the Lord Chief Justice now be only consulted rather than have to agree with the removal or suspension of a listed judicial official? Perhaps most iniquitous of all is the fact that in the constitutional Bill the Lord Chief Justice must agree—that is, for England and Wales he retains his veto. Removal in England and Wales will be by the Secretary of State with the agreement of the Lord Chief Justice. That was made clear at col. 16 of Hansard on 26 January, on page 19.74 of Constitutional Reform and in the Lord Chancellor's judiciary-related functions proposals of January 2004.

The Lord Chancellor, the Minister at that time, in his Statement covered his tracks somewhat by saying:

"My responsibilities also extend to Northern Ireland. Consideration will be given to the future handling of my functions that relate to the Northern Ireland judiciary. That process, which is currently under way, will include consultation with the Lord Chief Justice of Northern Ireland and will be based on the same guiding principles as in England and Wales, taking into account any provision already made for Northern Ireland to give effect to the recommendations of the Northern Ireland Criminal Justice Review".—[Official Report, 26/1/04; col. 17.]

This is a very important topic. In fact, nothing is more important in relation to the independence of the judiciary and the prevention of its politicisation than the right of a judge to security of tenure of office. A judge must be able to be confident that party politics will play no part in his selection and appointment and have no influence on his security of tenure. He must be unfettered in his ability to do justice to all without fear or favour, affection or ill will.

The issues and the proposals in the Bill as a whole must be seen not only from the standpoint of how they will be put into effect in practice, but also how they will be perceived by the judiciary themselves. There can be little doubt that a judge in Northern Ireland will feel less secure as a result of this provision and hence less confident in showing robust independence from the powers that be.

What have the Government to fear from maintaining this safeguard, which was so widely inserted when the matter was decided by Parliament less than two years ago? It must be unlikely in the extreme that the Lord Chief Justice of Northern Ireland will refuse his consent to the dismissal of a judge following the adverse decision of a tribunal headed, as it must be, by a Law Lord unless there are very good reasons for him to do so. But by parity of reasoning, if he feels it right to withhold his consent, he will have such reasons.

It may be precisely because he understands in a way which the tribunal does not that the sectarian politics of Northern Ireland, which the judiciary have been astute to avoid to the admiration of all fair-minded observers, has impinged on the case. It must be recognised that the Law Lord heading the tribunal may well not be—indeed, probably will not be—a Law Lord with deep knowledge of Northern Ireland and, unlikely as one hopes it will be, such a situation could arise. In such circumstances, the protection of the Lord Chief Justice's consent would be critical.

In England and Wales, the Government's proposal—the Lord Chief Justice the noble and learned Lord, Lord Woolf, has confirmed this—that the consent of the Lord Chief Justice is essential. It should be the same in Northern Ireland. What possible reason can the Government give for proposing otherwise? I beg to move.

Photo of Lord Mayhew of Twysden Lord Mayhew of Twysden Conservative

My Lords, I am so anxious to hear the answer from the Government Front Bench to the question my noble friend has posed that I hesitate to intervene. But the issue is so important that I am going to none the less.

The change which Clause 5 makes is extremely important. The case for it is not made out and I believe it ought to be vigorously rejected. It is said by the Minister, "Don't worry, there will first have to be a tribunal with two judges and one lay person. One will be a Law Lord. It must have recommended removal or suspension". My answer to that is that the Lord Chief Justice does not even have to have agreed to the establishment of such a tribunal; he has only to have been consulted about it. He may have objected to it and he will not necessarily sit on it. In fact, if he has objected to it, it is almost certain that he will not sit on it.

Nevertheless, as my noble friend said, under the 2002 Act, he was given a veto on removal or suspension of a judge. And that notwithstanding that the Northern Ireland Criminal Justice Review was already published so that it was known that the review,

"did not recommend a requirement for the agreement of the Lord Chief Justice".

The Explanatory Notes at paragraph 14 lamely state that the change in Clause 5 reflects more closely the recommendations in the review. Why then was it not in the 2002 Act, which succeeded the review? The answer given is that it is in the Hillsborough agreement. I suggest to your Lordships only that if it was in the Hillsborough agreement it should not have been, and the Hillsborough agreement cannot pre-empt what Parliament may decide in its wisdom.

I ask noble Lords to put themselves in the position of a judge if Clause 5 is carried. Only two years ago the judge would know that he was protected by the necessity for a joint resolution of both Houses of Parliament, like his counterpart in England and Wales. Then that provision went by virtue of the 2002 Act. But still the judge could not be removed without the agreement of his chief. Now he realises that that is to go. He may be dismissed only on the recommendation of a tribunal with whose establishment his chief may have disagreed, upon which he did not sit and with whose recommendations he disagrees.

What is the judge, in those circumstances, to make of this one-way progression of so-called reform? I offer this suggestion. He will calculate that the maintenance of a fail-safe system for judicial independence is now manifestly of less concern to the Government than that the so-called political process should be furthered by what is seen at Hillsborough to be expedient. In those circumstances, will he not be tempted to trim his sails accordingly? The very existence of such an obvious temptation, publicly perceived—as it will be—will serve to diminish public confidence in the independence of the judiciary. I suggest that it is not a temptation to which either the judiciary or the public should be exposed.

Photo of Lord Smith of Clifton Lord Smith of Clifton Shadow Minister, Northern Ireland Affairs

My Lords, when we discussed the Justice (Northern Ireland) Act 2002, I offered the advice that we should not miss an opportunity to invent or slim down a judicial apparatus for Northern Ireland commensurate with the size of Northern Ireland. Parliament in its wisdom chose to ignore my advice; and we have now replicated there all the paraphernalia that we have in England and Wales. It is therefore consistent that we also follow the practice of England and Wales. For that reason, should the noble Lord, Lord Glentoran, seek to test the opinion of the House, noble Lords on these Benches will support him.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

My Lords, I understood that it was contrary to judicial independence to alter the terms of service of a judge once he was appointed. If the proposal were to affect judges differently accordingly to the time at which they were appointed, that would be a serious and difficult situation for the judiciary in Northern Ireland to accommodate.

Photo of Lord Kingsland Lord Kingsland Conservative

My Lords, I had the opportunity of speaking on this matter both at Second Reading and in Committee. I am not going to state again my objections in principle to the Government's proposals. I simply want to emphasise the different treatment that High Court judges will receive in England and Wales on the one hand and in Northern Ireland on the other.

In England and Wales they will continue to receive the security they derive from the fact that they can be dismissed only on an address by a vote in both Houses of Parliament. Moreover, paragraph 74 of the document placed in the Library by the Lord Chancellor in the light of the Government's new proposals for judicial appointments in England and Wales states:

"High Court Judges and above can only be removed from office by The Queen on an Address from both Houses of Parliament. Subject to this, a judicial office-holder will only be removed from office by the Secretary of State with the agreement of the Lord Chief Justice".

Even if one sets aside the issue that Northern Ireland High Court judges will no longer enjoy the protection of a vote by both Houses of Parliament, it remains inexplicable why the additional protection of the agreement of the Lord Chief Justice should apply to all English judges, irrespective of whether they are High Court judges or circuit judges, but that equivalent protection should be expressly removed, for no apparent reason, in the case of newly appointed Northern Ireland High Court judges.

Perceptions matter enormously in decision making. If the High Court judges in Northern Ireland think that they no longer have security of tenure, it will affect the courageous independence they have shown for the past 30 years. I find the Government's conduct on the matter inexplicable.

Photo of Lord Dubs Lord Dubs Chair of Labour Peers

My Lords, I take a different position. I understand the much greater legal knowledge of many of the noble Lords who have contributed to the debate on the amendment so far, but we are talking about a situation that is not identical to that pertaining in England and Wales. The Government gave their commitment at Hillsborough in the Joint Declaration. It would be a sad day if the Government were to renege on a promise they made to the Northern Ireland parties.

I understand that that is the main reason why there will be a different approach from that which noble Lords believe to be appropriate for England and Wales. Furthermore, the argument was also put in the implementation plan of the Criminal Justice Review that was updated in June 2003, when the point was clearly stated in the foreword to the document. It is not a new issue; it has been in print and understood by the main Northern Ireland political parties for some time. It would be a sad day if the House were to say, "Never mind what undertakings the Government made; we think differently". The situation in Northern Ireland, with the start of the talks today on the review of the Good Friday agreement, is sensitive. It would be unhelpful if this House were to change the Bill in the way the amendment suggests.

Photo of Baroness Park of Monmouth Baroness Park of Monmouth Conservative 5:45 pm, 3rd February 2004

My Lords, any Government who make such a commitment without recognising the important repercussions ought to be big enough to say, "We gave this commitment in good faith. However, we have considered it carefully and seen what effect it will have. We are very sorry, but we have decided that we no longer intend to keep that commitment". If they are big enough as a government they can say that; and they have a duty to do so because the whole of Northern Ireland justice depends on retaining the confidence and power of the judges.

Photo of Lord Maginnis of Drumglass Lord Maginnis of Drumglass Crossbench

My Lords, it was not my intention to intervene—not because I am not party to this amendment but because there are those who are judicially qualified to speak on the matter and, as a layman, I feel that I am not. However, that was until the noble Lord, Lord Dubs, raised the issue of Hillsborough yet again. I always understood during my period both in another place and here that Parliament was supreme and that no politician, even the Secretary of State, could arbitrarily usurp its authority.

In this case, we are dealing with something that has a long proven tradition. It is totally wrong to make such a change to please some small element of society in Northern Ireland, whatever the noble Lord, Lord Dubs, may think. Hence I support the noble Lord, Lord Glentoran, and hope that he will press the matter to a Division.

Photo of Lord Molyneaux of Killead Lord Molyneaux of Killead Crossbench

My Lords, it may horrify your Lordships to know that the magic words "Hillsborough" and "Weston Park" could in any way justify the change in legislation brought forward by the Government. I shall take Weston Park first. We were told in this building—many noble Lords will remember the occasion—that these very serious changes were authorised at Weston Park.

A Minister of the Crown was present who is now unfortunately deceased. He repeated to me that one could not argue with him because the matter was carried and arranged at Weston Park. I said that I was sorry, but there was no such thing as "the Weston Park agreement". I apologise to your Lordships, because this may seem removed from Hillsborough, but the pattern is exactly the same.

The deceased very senior Lord on that occasion said that he was sorry but I was not up to date because the matter was agreed at Weston Park. My noble friend Lord Maginnis was present at the gathering in Weston Park. There was never at any stage in the proceedings a get-together around any table; there was never a vote taken. What happened was that the two Prime Ministers consulted with various groups and parties when it suited them. The others, I suppose, went around feeding the ducks, but at no time was there a legal gathering and at no time were decisions taken.

The late Lord telephoned me the next morning and said, "Jim, I owe you an apology. You were correct. There was no agreement because there never was any sort of an Assembly. When I left you last night, I went over to No. 10 and asked to see a copy of the Weston Park agreement. There was confusion in that building—I shall not say anything about more recent confusions—and, in the end, a very senior official said, 'I'm sorry. We don't have it. We can't have it. No one has it because there was not an agreement'".

Much the same operation continued at Hillsborough. Others were present—I was not in the magic circle. On that occasion, we were blessed with the presence of the President of the United States. However, as I understand it, there was a fair amount of drama with television statements and so on, but no concrete, definite legal agreement. Therefore, I am afraid that I have a duty to issue this caution lest we blunder into accepting as the law something which was never put in place by any democratic body.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I believe that this is the most important and challenging issue that we shall debate on this Bill. First, this measure is superfluous in practice. I shall seek to explain that I cannot conceive of circumstances in which a Lord Chief Justice would wish to oppose a decision of a properly constituted tribunal.

Secondly, I shall seek to set this issue within the reality of our considerations—the reality of the challenge facing this Government and civil society in Northern Ireland—on how to build on normalisation and work towards devolution. As part of that, it is clearly important that we honour our commitments if we are to expect others to do so also. The commitment given as part of the Hillsborough agreement is reasonable and it does not undermine judicial security or judicial independence. I shall speak on those two issues.

I turn to why there is no reason to believe that the processes that will come into force post-devolution—we are talking about post-devolution here—will not put the independence of the judiciary at risk or cause a problem to the Lord Chief Justice. There are three categories of judicial office-holder. I must ask for the patience of the House in this respect as I want to explain how these measures will apply to the three categories of those office-holders.

First, Section 7(5) of the 2002 Act—the section that we are talking about—will not apply to the removal of the Lord Chief Justice or a Lord Justice of Appeal; nor will it apply to a High Court judge appointed before the section comes into force, which would be post-devolution of judicial functions. The removal of those office-holders, were they to be found guilty of a judicial misconduct, would require not only the recommendation of a removal tribunal but also an address to both Houses of Parliament. Therefore, this amendment does not refer at all to that category of judicial office-holder.

I turn to the second clutch of judicial office-holders, if I may use that term. I refer to all other listed judicial office-holders, as set out in Schedule 1 to the 2002 Act; for example, as the 2002 Act currently stands, the removal of one of the 17 county court judges or one of the 19 resident magistrates would require the consent of the Lord Chief Justice.

However, as a consequence of this Bill, a tribunal would be established, as was said by the noble and learned Lord, Lord Mayhew, either at the initiation of the Lord Chief Justice himself or at the initiation of the First Minister and the Deputy First Minister after consultation with the Lord Chief Justice. The tribunal that would be set up for this category of judicial office-holder would be chaired by the Lord Chief Justice himself, a former Lord Chief Justice or a Lord Justice of Appeal. It would also have a High Court judge member. The crucial point in this respect is that the chair and the High Court judge will be selected by the Lord Chief Justice. Therefore, for this clutch of judicial office-holders, which is by far the vast majority—roughly speaking, we are talking about some 1,000 posts—the Lord Chief Justice will select the High Court judge and the Lord Chief Justice, if he wishes, can put himself on the tribunal and can chair it.

A third—lay—member will be selected by the First Minister and the Deputy First Minister. Therefore, if, for some reason, one chose to believe that the lay member was nothing other than a patsy or a pawn of politicians, two senior judges would clearly form the majority of such a tribunal. One of those would be the Lord Chief Justice, if he wished to chair it; the other would be a High Court judge whom he would have chosen to sit with him on that panel.

Next, the tribunal's procedure will be determined by no other than the Lord Chief Justice himself. In those circumstances, I cannot see how it is conceivable that a tribunal so composed with such a procedure could come forward with a recommendation with which the Lord Chief Justice would not be in accord.

The third set of judicial office-holders—High Court judges—are potentially the smallest group and form potentially the most sensitive and challenging area. As I believe the noble and learned Lord, Lord Mackay, signalled, the measure would apply only to a High Court judge appointed post-devolution, not prior to it, but a High Court judge appointed after the new removal provisions come into force. And, were such a High Court judge to be charged with a misdemeanour which appeared either to the Lord Chief Justice or to the First Minister and the Deputy First Minister acting together to require investigation, the process would be as follows.

A tribunal would have to be convened and it would be chaired by a Lord of Appeal in Ordinary—we know who those are—or the holder of a high judicial office. That could mean an English High Court, Court of Appeal or Court of Session judge. The other judicial member would be a judge of the Court of Appeal in England and Wales or a judge of the Inner House of the Court of Session. Those persons would be selected by the Lord Chancellor.

Also, if such a distinguished tribunal recommended the removal of a High Court judge, then it seems to me inconceivable that a body consisting of those people and making such a momentous recommendation would do so without the greatest inspection of the evidence and the greatest inspection of whether they believed it was fair, right and proper to do so.

Therefore, two of the highest judicial office-holders in the land would make a recommendation that a judge—in this category, a High Court judge—be removed. Can we conceive of a situation where the Lord Chief Justice would consider it right to say in that circumstance, "No, I will have my way. The decision of that tribunal should not carry"? In the difficult circumstances of Northern Ireland, in essence we are saying that no person, however high or low, can appoint a judge and no person can veto a judge.

Lastly, I turn to why this matters and why I particularly hope that the arrangements which we have always enjoyed in this House of a bi-partisan approach to the crucial issues of Northern Ireland will sustain and continue. I do not need to tell the House what a deeply divided society it is and how previous governments have been struggling for years with the parties in Northern Ireland to try to bring an end to the appalling divisions in that society. Many Members of this House know vastly more about that than I do, but I mark that we have not concluded that process at this stage.

In fact, the Northern Ireland parties have gathered today to begin a review of the operation of the Belfast agreement. I, and I am sure all Members of the House, hope that that will lead to a successful outcome. The Government will work with the parties to try to create the conditions which will enable a working executive to be formed. But what is needed is confidence between the parties and among the public. Everyone must live up to the commitments which they have given. How do we expect other political parties to honour their difficult commitments if the Government themselves do not honour theirs?

The proposals contained in the Bill were the subject of extensive discussion at Hillsborough to try to ensure the broadest possible support. We have been completely transparent about these commitments. The Joint Declaration by the UK and the Irish Governments in May last year set out the Hillsborough discussion. This declaration confirmed that there would be a second justice Bill and the nine specific commitments were made public in the up-dated implementation plan. One of those is Clause 5 of the Bill.

There has been a great tradition in this House of co-operation across the parties on matters affecting the political process in Northern Ireland. I very much hope and expect that we will continue that tradition because the greater good of Northern Ireland and peace require that. I am worried by what I have already heard in terms of the signals and soundings that have been given by both Opposition Benches in that respect.

In conclusion, a clear, transparent process for both the appointment and the appropriate removal of judicial office holders is set out in this Bill, which I believe is both fair to the person complained against and to society. No one acting alone would be able to appoint, dismiss or veto a judge. That is right. These are carefully crafted measures which increase transparency in judicial independence. I believe that the House should support them. I call on it to do so.

Photo of Viscount Bledisloe Viscount Bledisloe Crossbench 6:00 pm, 3rd February 2004

My Lords, before the noble Lord sits down, can he explain to me, as a total ignoramus on this topic, what appears to be a total dichotomy between his two opening sentences? First, he said that it will make no difference because he cannot conceive of any circumstance in which the Lord Chief Justice would disagree with the tribunal. Secondly, he said that it is a very important provision of the Hillsborough agreement, which we must not tear up. If it is totally unimportant and there is never going to be any choice, why did people make so much fuss to make it a term of the Hillsborough agreement?

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, the Government did not make so much fuss to get it into the Hillsborough agreement. It was very important indeed to some of the parties. There is absolutely no contradiction between the two points I have been making.

I shall explain why. Northern Ireland is such a divided society and the Lord Chief Justices I have met in Northern Ireland—and that is two only—will be aware of the great courage and integrity which Lord Chief Justices have displayed in the appallingly difficult times in Northern Ireland over the years. I believe that the vast majority of the people of Northern Ireland have respect for Lord Chief Justices both past and present. But because it is such a divided society, some political parties might be apprehensive that a future Lord Chief Justice with a power of veto might exercise it in the face of a decision, which was not fair and balanced, by a properly constituted tribunal. I believe that that concern may be seen by some as extreme but it is a real issue. Therefore, because there is no threat to judicial independence in practice, as I have explained, it is important that the Government honour their commitments in that respect. It is part of building confidence in the wider part of civil society in Northern Ireland in the integrity of the judicial processes there. I commend it to the House.

Photo of Lord Glentoran Lord Glentoran Conservative

My Lords, I thank the noble Lord for his lengthy expose of the Government's position. I am not convinced. Some of the contradictions which have appeared make me even more convinced that there is absolutely no need for this clause and that the Bill would be considerably better without it. I wish to test the opinion of the House.

On Question, Whether the said amendment (No. 13) shall be agreed to?

Their Lordships divided: Contents, 149; Not-Contents, 128.

Division number 2 Private Parking: Ports and Trading Estates — Justice (Northern Ireland) Bill [HL]

Aye: 147 Members of the House of Lords

No: 126 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the affirmative, and amendment agreed to accordingly.

Clause 6 [Duty of Director of Public Prosecutions to refer certain matters to Police Ombudsman]:

Photo of Lord Maginnis of Drumglass Lord Maginnis of Drumglass Crossbench 6:16 pm, 3rd February 2004

moved Amendment No. 14:

Page 3, line 35, leave out "may have" and insert "has"

Photo of Lord Maginnis of Drumglass Lord Maginnis of Drumglass Crossbench

My Lords, this amendment deals with the duty of the Director of Public Prosecutions to refer certain matters to the Police Ombudsman. I particularly refer to subsection (3), which will insert a new subsection (4A) in to the 1955 Act:

"The Director shall refer to the Ombudsman any matter which—

(a) appears to the Director to indicate that a police officer—

(i) may have committed a criminal offence".

It is our proposal that "may have" be changed to "has".

It appears absolutely ridiculous that the Director of Public Prosecutions, who has the duty to make decisions about matters being referred to the court, should have to relegate his position to that of the Police Ombudsman. That is what it boils down to.

The reality is that the Director of Public Prosecutions will look at a case where there has been an allegation that a police officer may have committed a criminal offence and he will then make a decision that he has enough evidence to test the matter in court, or that he does not have enough evidence and that the matter should not be tested in court. That has to be an end of it. It appears to go against the course of natural justice that the matter would then be passed on to the Police Ombudsman for further investigation.

Recently the Police Ombudsman went back in one case for a period of 10 years where a complaint had been made by an injured party. He decided to reopen a matter that had previously been referred to the DPP and where no action had been taken. When I questioned that, I was told that where a matter appears to have involved criminality, the ombudsman has an obligation to deal with it no matter how far back the issue goes.

When the legislation creating the post of Police Ombudsman was passed through Parliament, I understood that there was to be no retrospection. Now I am told that that is in respect of policy, not matters of criminality. So, at present if someone takes an allegation to the Police Ombudsman, she considers that it is her legal obligation to pursue the issue. However, I do not believe that this House should endorse legislation which states not only that, but that the Director of Public Prosecutions, irrespective of any decision he makes within the powers of his office, has to subject himself to second-guessing by the Police Ombudsman.

For that reason, I propose that in line 35 we leave out "may have" and insert "has". Amendment No. 15, grouped with this amendment, leaves out lines 36 to 38, which state that a police officer,

"may, in the course of a criminal investigation, have behaved in a manner which would justify disciplinary proceedings".

That is so ill-defined that, again, I believe that it should not be part of the Bill. We have a Chief Constable and a police board, and disciplinary procedures are already in place. Once again, it appears that we are saying that the Chief Constable and officers in command of the PSNI must subjugate themselves to the will and interests of the Police Ombudsman. Again, it strikes me as an absolute travesty that that should be the case.

In the debate on Clause 5 it was interesting to hear the Minister virtually admit, and to receive support from his noble friend Lord Dubs, that concessions were being made to a very small minority—we all know that we are talking about Sinn Fein. Those cannot be deemed to be in the best interests of the community: Protestant or Catholic, Unionist or Nationalist, where neither has any difficulty at present. We are being asked to accept an intervention by Sinn Fein for some narrow nationalistic or sectarian reason. I beg to move.

Photo of Lord Goldsmith Lord Goldsmith Attorney General, Law Officers' Department, Attorney General (Law Officers)

My Lords, we discussed this clause at some length in Committee. The amendments deal with the reference by the Director of Public Prosecutions to the Police Ombudsman in certain cases.

I re-emphasise what I said in Committee; that is, this clause does not undermine in any way the professionalism of the Director of Public Prosecutions. Perhaps I may respond straightaway to the point made by the noble Lord, Lord Maginnis, that the effect of this clause may be that the director is delegating in some way his decision to the ombudsman. Clearly, that is not the position. As I said in Committee, decisions as to whether there should be a prosecution will still lie entirely with the director and his staff. It is his decision as to whether a prosecution should take place, and that will continue to be the position. If there is to be a prosecution, that will take place before reference to the ombudsman. So, there is no question of delegating a decision. The point is that the ombudsman has a different function. The ombudsman is not concerned to make a decision as to whether there should be a prosecution. As I said, that is for the director. The issue for the ombudsman is a different one and not one which falls within the director's responsibilities.

The provision therefore delineates sensibly the respective roles of the Director of Public Prosecutions and the Police Ombudsman by ensuring that any decision taken on the conduct of the police—not prosecution decisions but other decisions—are taken by the Police Ombudsman as Parliament intended. The director may already make reference to the Police Ombudsman in these circumstances, and we are strengthening that provision.

If Amendments Nos. 14 and 15 took effect, that would mean that the director would be obliged to refer cases to the ombudsman only where a police officer had in fact committed a crime. In effect, that means only where the officer has been convicted of a crime. In our view, that is a much narrower and less helpful provision than ensuring that the ombudsman is in a position to know of cases where there may be a justification for considering, as the ombudsman may, other powers rather than prosecution.

The other aspect to which the noble Lord referred is the second part of the clause, which his amendment would remove. That relates to cases where it appears to the director that a police officer,

"may, in the course of a criminal investigation, have behaved in a manner which would justify disciplinary proceedings".

The noble Lord worries about that being ill-defined. However, the virtue of the clause is that it is not for the director to decide whether disciplinary proceedings should take place. Ultimately, that is a matter for the ombudsman. He is simply making a reference to matters which may fall within that category. He and his staff will need to be guided—I have discussed this with the director—as to the kind of areas that may cover. However, as I have said, in view of the great experience of the director and his staff in dealing with police investigations, they will certainly have a good idea of conduct which may justify disciplinary proceedings.

Finally, the noble Lord referred to the issue of retrospectivity. We dealt with that also in Committee. We tabled amendments then, and I am grateful to the noble Lord, Lord Laird, who drew this to our attention, to ensure that this clause is consistent with the existing legislation in terms of retrospective investigations by the ombudsman. There are certain circumstances in which, within limits, it may be retrospective. This clause makes no changes to those and is entirely consistent with them. For those reasons, I hope that the noble Lord does not press his amendment.

Photo of Lord Maginnis of Drumglass Lord Maginnis of Drumglass Crossbench

My Lords, it is difficult to convince me. Certainly, I have not found the Minister's response convincing. It appears that there is a form of double jeopardy that has not been addressed. It is left to me to ask whether the Minister can illustrate a case in which, a criminal having gone through the due process, someone who is not a police officer will find himself in a similar situation to a police officer as here proposed. If the Minister can give me an example of that, I will be happy to give way. It is not my intention to press this, but it is disappointing that the Government are simply putting this provision in the Bill to placate a small section of society, namely Sinn Fein/IRA.

Photo of Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton Government Whip 6:30 pm, 3rd February 2004

My Lords, once we reach Report, and the Minister has sat down, only the mover of the amendment may speak. Technically, the mover of the amendment must move the amendment in order to say anything. The House is slightly lenient on that point. The Minister listens and obviously if appropriate, will drop a line or two to the noble Lord.

Amendment, by leave, withdrawn.

[Amendments Nos. 15 and 16 not moved.]

Clause 7 [Influencing a prosecutor]:

Photo of Lord Glentoran Lord Glentoran Conservative

At Committee stage, I thought that we had support from all around the House. I had hoped—perhaps expected would be overstating it—that the Government might have seen a way to leaving this clause out and taking our advice that it was unnecessary, especially in the light of my reading of Hansard, where I found the Attorney-General's arguments less than convincing. I have great admiration for the Attorney-General in 99.9 per cent of what he does for our nation.

This is a new offence of influencing a prosecutor. It is neither necessary nor wise. The Government rightly realised that, for it to have legal certainty, an essential of any such criminal offence is that it must be done with the intention of perverting the course of justice. Any attempt to influence a prosecutor with such an intent is already a criminal offence at common law, and the proposed statutory offence adds nothing to it. I am well advised by my noble friends who are not in their places at the moment, but who are much more skilful lawyers than me.

The Attorney-General was asked specifically by my noble and learned friend Lord Mackay of Clashfern to illustrate circumstances in which there would be a breach of the clause and yet not of the common law provisions. I sensed from Hansard that he was not able to answer that. He said that there was an advantage in having it in the statute. The real problem is that while to do so adds nothing in law, it has a significant down side. As the noble and learned Lord the Attorney-General made clear, reference to the "Director of Public Prosecutions" refers also to his deputy, to any public prosecutor, and to any barrister or solicitor appointed to prosecute on his behalf. Yet, there can be many perfectly valid reasons why individuals can and should be able to seek to influence the prosecutor, be it the DPP himself or any other prosecutor.

Such representations may concern not only the evidence, but the public interest reasons for bringing the case. Before any case can be prosecuted not only should there be a sufficiency of evidence to give a reasonable prospect of conviction, but prosecution must also be in the public interest. The existence of this new offence is unlikely to have much effect on professional criminals or terrorists, or on those who intimidate on their behalf. It may well inhibit the innocent person who wishes to make a pressing representation, whether it be on evidential or public interest grounds. It is essential that the law be clear in this area. We suggest that this clause reduces clarity and may well restrict proper representations. It should not stand part of the Bill. I beg to move.

Photo of Lord Mayhew of Twysden Lord Mayhew of Twysden Conservative

My Lords, this clause is a mystery. It is a harmful mystery because, as my noble friend has just said, common law achieves everything, on a more general basis, that this achieves in a particular focus. It is harmful, because the existence of this specific offence will be a temptation and will lead to the foreseeable use by prosecutors of this specific offence. This has harmful connotations for exactly the reason that my noble friend has just given.

He said correctly, as the Attorney-General knows so well, that there are two limbs to what a prosecutor must ask himself. Is there enough evidence to justify a conviction on the basis that there will be a reasonable chance of getting a conviction? That is how it is put in Northern Ireland, if I remember correctly—it is either reasonable or realistic, but I believe that it is reasonable; the effect is the same either way.

Is a prosecution in the public interest? That is the second limb, which applies if the first question has been answered in the affirmative. Why should a member of the public not have a view as to what is or is not in the public interest? It is entirely foreseeable that a member of the public will have a view on any particular case, and he may be moved to express it to the prosecuting authorities. Why should he not seek to influence a prosecuting authority in those circumstances? There can be no reason whatever why he should not be permitted to seek to do so, and foreseeably he will.

What can be more readily foreseeable than that a prosecutor in such circumstances will say to himself, "This is intended to pervert the course of justice by an interference with my impartial discretion"? It will be for the prosecutor to decide whether to prosecute the member of the public for that offence.

I invite your Lordships to accept that this clause is unnecessary, and it will give rise to confusing uncertainty. It will result in inexpedient criminal proceedings, and at worst it may well lead to an oppressive prosecution. This clause should be struck from the Bill, and I hope that it will be.

Photo of Lord Maginnis of Drumglass Lord Maginnis of Drumglass Crossbench

My Lords, I will give the noble and learned Lord the Attorney-General a practical example of a case in which I might well have been deemed—if this clause became legislation—to have committed an offence.

An elderly widow was accused of being involved in a hit and run accident about 30 miles from her home on a Saturday morning. She was taken to court, the case had been adjourned, and she was going back to court. Knowing the family and knowing that the woman would not be involved in such a case, I went to see her. I discovered that the police had come out, they had seen a dinge in her car, which had happened before—she had had the car for years. The police had taken paint samples, but they had not given her a report of what those samples indicated.

I intervened on her behalf. I discovered that the paint samples proved nothing. I approached the chief superintendent, and I suggested that he had no case and should not prosecute. He insisted that he would prosecute, because he had an eyewitness. I had the idea of getting her telephone account. She lived on her own, and I discovered that at the very time that she was supposed to be 30 miles away bashing into the car, she had made a series of telephone calls to people who could be identified as members of the bowling club where she was secretary and of the Mothers' Union where she was secretary.

The case still went to court, despite my making representations and presenting that evidence. I had to go to court and give evidence. Eventually, the resident magistrate understood and dismissed the case, realising that the eyewitness had made a mistake. Given that series of events, would I have been guilty of an offence under this Bill? I believe that I would have, because I pleaded with the chief superintendent not to pursue the case against the woman. If the noble and learned Lord the Attorney-General can convince me that I am wrong in that opinion, I might better understand the purpose of duplicating the provision.

Photo of Lord Goldsmith Lord Goldsmith Attorney General, Law Officers' Department, Attorney General (Law Officers)

My Lords, the noble Lord, Lord Glentoran, put his proposition on the basis that having the offence was neither necessary nor wise. In my view, it is both, and I will explain why. Before I do, I shall emphasise two factual points of importance. The first is that, in some of the observations made by noble Lords, the spectre was raised of a prosecutor misusing the clause to the detriment of those who have perfectly legitimate reasons to put representations before him. The two points relate to that.

First, there is no offence, unless the intention of the person seeking to influence the Director of Public Prosecutions is to pervert the course of justice. That is critical. It is not an offence of seeking to influence; it is an offence if there is an intention to pervert the course of justice. I have no hesitation in saying to the noble Lord, Lord Maginnis of Drumglass, that, on the account that he gave of the proper steps that he took on behalf of a constituent so that the course of justice would run true, rather than be perverted, he did not commit any offence and would not commit an offence on any further occasion. I hope that the noble Lord, who said that he hoped to be convinced by me, will, at least, find that statement by me of some comfort, even if he is not prepared to be wholly convinced, as I hope he will be. It is important to recognise that the provision requires that absolutely key condition.

The second point—it is not unimportant—is that Section 32A(4) will provide that the proceedings cannot be brought just on the whim of a prosecutor, a barrister or a solicitor. They can be brought only with the consent of the director. It will take a decision by the director for such proceedings to be brought. They cannot be brought on a whim or so as to frighten someone off.

Why is the provision necessary and wise? A new system of justice is being created for all the people of Northern Ireland. Under that system, the director will explicitly be an independent officer. That is unlike the position in England and Wales, although I do not suggest for a moment that the Director of Public Prosecutions in England and Wales is not independent. The position will be different in that there will be a wholly new relationship with the Law Officers.

At the moment, the Director of Public Prosecutions is subject to the superintendence of the Attorney-General—my superintendence. After the devolution of justice, that relationship will change, and the director will be in a more direct and, if I may say so, free-standing position. He will have a relationship of consultation with the new locally appointed Attorney-General and a relationship of consultation with the Advocate-General. The reason for that is to make it very clear, in the particular circumstances of Northern Ireland, that people must have absolute confidence that prosecution decisions taken in Northern Ireland are taken independently, impartially and objectively on the evidence and nothing else and, as the noble and learned Lord, Lord Mayhew of Twysden, and the noble Lord, Lord Glentoran, said, on a proper consideration of the public interest. Those of us who have to make those decisions know that it is a question of public interest and not, for example, of any party political interest, which would be an inadmissible consideration.

Everyone needs to be clear that those decisions will be taken independently. In the past, there have been assertions—assertions that I have repudiated and repudiate now—that prosecution decisions have not been taken on that basis. I unreservedly pay tribute to the present and past director for the independence of the decisions that they have taken. Those decisions were taken conscientiously and properly, but I know for a fact that people have questioned them. Therefore, it is important and necessary for Parliament to express very clearly that the independence of the director is absolute and that anybody who seeks to influence him with the intention of perverting the course of justice shall not do so. It is necessary so that there is a clear statement, and it is necessary so that the people of Northern Ireland can be assured that decisions affecting them, their family, their relatives or their neighbours will be taken properly, objectively and impartially. It is necessary to state that to give that assurance and, as I said, to give a clear statement that the independence is to be respected.

I have declined to speculate on all the circumstances in which the common law might afford a remedy at the moment. As I said to the noble and learned Lord, Lord Mackay of Clashfern, in Committee, the difficulty about the common law is, as he and all lawyers will know, that its edges are often not that precisely clear, until a court gives further clarity. By putting this provision in the statute, we will make it clear that,

"if, with the intention of perverting the course of justice, he seeks to influence the Director"— or one of those persons, a person is guilty of an offence.

It may be that, in certain circumstances, the common law could have done the job, but it is better that what we expect from people should be clear in the statute. I have made it clear in what I have said to the noble Lord, Lord Maginnis of Drumglass, and on a previous occasion, that the provision will not stop proper representations being made by people who, to put it broadly, have a legitimate interest in doing so—there will be many—to the prosecutors. However, there comes a point at which it crosses the boundary into seeking to pervert the course of justice, and that shall not be done. It is both necessary to say it—to give assurance—and wise to say it, in order that there should be a very clear message in the statute about the independence of the director. Those are the reasons why I continue to believe that it is an important and proper provision.

Photo of Lord Glentoran Lord Glentoran Conservative 6:45 pm, 3rd February 2004

My Lords, I thank the noble and learned Lord the Attorney-General for that very clear set of arguments and advice. At this time, I am content to accept his advice, on the premise that I will return to my legal team and take further advice before Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 [Guidance for criminal justice organisations on human rights standards]:

Photo of Baroness Amos Baroness Amos President of the Council, Privy Council Office, Lord President of the Council and Leader of the House of Lords (Privy Council Office)

My Lords, Amendments Nos. 18 to 24 and Amendment No. 29 seek to meet the recommendations of the Select Committee on Delegated Powers and Regulatory Reform. In its report, the committee recommended that the human rights guidance to be issued by the Attorney-General under Clause 8 should be brought into operation by an order subject to the negative resolution procedure when it is issued and each time that it is revised. That is to give Parliament some control over the coming into operation of the guidance.

In Committee, the noble Lords, Lord Glentoran and Lord Kingsland, tabled an amendment relating to that issue. In response, my noble and learned friend the Attorney-General stated that it was the Government's intention to adopt the committee's recommendations but that time had not permitted amendments to be tabled for the Committee stage.

The amendments in this group amend Clauses 8 and 21 to make provision for the Attorney-General's guidance on human rights that will be brought into force by order, subject to the negative resolution procedure when it is issued and each time it is revised.

I thank the Delegated Powers and Regulatory Reform Committee for its advice. I beg to move.

Photo of Lord Glentoran Lord Glentoran Conservative

My Lords, I thank the Lord President for moving the amendment, which we support.

On Question, amendment agreed to.

Photo of Baroness Amos Baroness Amos President of the Council, Privy Council Office, Lord President of the Council and Leader of the House of Lords (Privy Council Office)

moved Amendments Nos. 19 to 24:

Page 4, line 42, leave out "and"

Page 4, line 43, at end insert "; and

(c) shall not come into operation until the Attorney General for Northern Ireland by order so provides." Page 5, line 27, leave out from "code" to end of line 30 and insert "the Chief Constable and the Board shall also have regard to any guidance for the time being in operation under section 8 of the Justice (Northern Ireland) Act 2004."

Page 5, line 33, leave out from "code" to end of line 37 and insert "the Director must also have regard to any guidance for the time being in operation under section 8 of the Justice (Northern Ireland) Act 2004."

Page 5, line 39, leave out "issued" and insert "for the time being in operation"

Page 6, line 7, after "subsection" insert "(3)(c) or"

On Question, amendments agreed to.

Clause 12 [Bail to which Part II of the Criminal Justice (Northern Ireland) Order 2003 applies]:

Photo of Lord Glentoran Lord Glentoran Conservative

moved Amendment No. 25:

Page 8, line 24, after "court" insert "and at the end insert—

"in order to carry out an arrest under this paragraph, a constable may enter any premises where he has reasonable grounds for suspecting that person to be"

Photo of Lord Glentoran Lord Glentoran Conservative

My Lords, I thank the noble Baroness for her letter to me referring to this amendment. It concerns the powers of access for the PSNI when a person has jumped bail. Having spoken to the noble Baroness, the chief constable's office at the PSNI and officials, I understand that while the Government are unwilling to alter the Bill to include this amendment, or a similar one, they are giving serious consideration to how such an amendment could be brought into future Bills on Northern Ireland justice, which we are led to believe are in the pipeline. I understand that the amendment could cause difficulties with the ECHR. I accept those arguments and should be grateful if the noble Baroness could give me an undertaking today that the Government are considering the matter and intend to facilitate the PSNI and those concerned with enforcing law and order in this area. I beg to move.

Photo of Baroness Amos Baroness Amos President of the Council, Privy Council Office, Lord President of the Council and Leader of the House of Lords (Privy Council Office)

My Lords, the noble Lord, Lord Glentoran, proposed a similar amendment in Committee. I gave an undertaking then to consider the proposal in so far as it related to a breach of bail. I have written to the noble Lord and, with the leave of the House, I shall set out what I said in that letter to clarify matters. Before doing so, it would be helpful to set out the powers that are currently available.

At present, the police have an automatic power of entry to effect arrest when an arrestable offence, as defined in the Police and Criminal Evidence (Northern Ireland) Order 1989, has been committed, is being committed, or is about to be committed. The power also applies for the purpose of saving life or limb, or for preventing serious damage to property, where a court issues a warrant of arrest in criminal proceedings and in a number of other specified instances.

In bail cases police powers are already in place to deal with the most serious breaches. When a person absconds from bail, committing the offence of failing to surrender to custody, the court would issue a warrant of arrest on his non-appearance, and thus a power of entry would follow. If a breach of a bail condition is of a serious nature, it may well constitute an arrestable offence—for example, the intimidation of witnesses—and thus, again a power of arrest and entry already exists.

It is only in relation to the less serious breaches and anticipated breaches, which do not constitute criminal offences, that a power of entry is not presently available. I would have real concerns that to create a power of entry for police in those less serious scenarios might be disproportionate and incompatible with the ECHR, as mentioned by the noble Lord, Lord Glentoran.

Since the Committee stage, my officials have been working closely with the chief constable's staff in the Police Service of Northern Ireland. They have been exploring the need to create a power of entry, proportionality and ECHR compliance. It is our view, which is now shared with the PSNI, that more joint work needs to be done between policy and legal staff.

Against the backdrop of the availability of other powers of entry, the pressing need for such a power in the circumstances proposed needs to be fully explored. Providing such a power should not be done lightly. It would be preferable to consider the power of entry in the context of all other related issues, including other powers in relation to arrest and bail.

I intimated in Committee that the need for a power of entry could be looked at in the context of the planned review of PACE in Northern Ireland. We have now agreed a revised way forward with PSNI whereby we shall fully explore the detail and prioritise the issue ahead of the planned PACE review. If legislation is still required, a legislative vehicle will be found.

If that approach were to be adopted I would be more confident that a proper exploration would be conducted into all the implications and peripheral considerations of such a change. I thank the noble Lord, Lord Glentoran, for his interest in this matter and hope that, with my explanation, he will feel able to withdraw the amendment.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

My Lords, I have not taken part in the progress of this measure, but may I say that that was an admirable reply?

Photo of Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton Government Whip

My Lords, the noble Lord, Lord Lester of Herne Hill, knows the rules about speaking after the Minister on Report.

Photo of Lord Glentoran Lord Glentoran Conservative

My Lords, I thank the Lord President for her undertaking, in light of which I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 13 [Transfer of prisoners]:

Photo of Baroness Amos Baroness Amos President of the Council, Privy Council Office, Lord President of the Council and Leader of the House of Lords (Privy Council Office)

moved Amendment No. 26:

Page 9, line 9, at end insert—

"( ) In paragraph 5(1) (conditions of transfer) after "this Part" insert "(other than a transfer under paragraph 1(2A))".

( ) After paragraph 5 insert—

"Conditions of transfer under paragraph 1(2A)

5A (1) A transfer under paragraph 1(2A) shall have effect subject to—

(a) such a condition as is mentioned in paragraph 6(1)(a); and

(b) such other conditions (if any) as the Secretary of State may think fit to impose.

(2) Such a condition as is mentioned in paragraph 6(1)(a) shall not be varied or removed.

(3) A condition imposed under sub-paragraph (1)(b) may be varied or removed at any time.""

Photo of Baroness Amos Baroness Amos President of the Council, Privy Council Office, Lord President of the Council and Leader of the House of Lords (Privy Council Office)

The main effect of the amendment is to provide that all transfers under the new power will be on a restricted basis and that, accordingly, the prisoner's release date will not be effected by the transfer. I said in Committee that any transfers would be on a restricted basis to ensure that there was no possibility of the prisoner benefiting from it owing to the more generous early release arrangements available in England and Wales.

We reflected on the comments made by the noble Lord, Lord Glentoran, in Committee, and concluded that it is right that the fact that all transfers will be on a restricted basis should appear on the face of the Bill. The amendment also provides that it will not be possible to convert a transfer from being on a restricted basis to an unrestricted basis. The amendment mirrors existing provisions of Schedule 1 to the Crime (Sentences) Act 1997 by providing that any transfer under the new power may be subject to such other conditions, if any, as the Secretary of State may think fit to impose. Those additional conditions will be capable of being varied or removed at any time.

The amendment does not change the policy in any way. It simply makes that policy more transparent by providing on the face of the Bill that all transfers will be on a restricted basis. I beg to move.

Photo of Lord Glentoran Lord Glentoran Conservative

My Lords, once again I thank the Lord President. That was largely what our amendments in Committee were about—clarification and transparency. The amendment goes a long way towards solving the problem of potential misunderstandings. I support the amendment.

On Question, amendment agreed to.

Clause 19 [Commencement]:

Photo of Lord Glentoran Lord Glentoran Conservative

moved Amendment No. 27:

Page 10, line 13, at end insert—

"( ) Any order under subsection (1) bringing into force any of sections 1 to 5 shall not be made before the end of the period of 6 months beginning from the date on which this Act achieves Royal Assent."

Photo of Lord Glentoran Lord Glentoran Conservative

My Lords, I am unsure how to handle this amendment. Part of the response to Amendment No. 27 was given earlier today by the noble Lord, Lord Filkin. I have also received a letter from the Lord President on this topic which almost satisfies me. It certainly clarifies issues about which I was concerned. Alongside the explanations given by the noble Lord, Lord Filkin, to earlier amendments today, it clears up the matter.

I have one concern: that this Bill will not run concurrently with the constitution Bill because I do not believe that it has yet been printed. A number of issues in this Bill could change fairly dramatically should the constitution of England and Wales Bill be altered significantly on its passage through Parliament. I was anxious to find a vehicle through which we could return to this Bill, or to parts of it, even though it had been enacted, so that we could change certain points should the constitution Bill be significantly altered. I want to avoid a widening gulf of differentials on particular aspects of the Bill, most of which we have talked about in Committee and on Report at some length. I do not know how to do that. I tabled this amendment as an opportunity to open the debate for probably the last time. I beg to move.

Photo of Baroness Amos Baroness Amos President of the Council, Privy Council Office, Lord President of the Council and Leader of the House of Lords (Privy Council Office)

My Lords, when we discussed this matter in Committee I anticipated some overlap between the two Bills being considered by the two Houses of Parliament. In that event, if there were considerable changes that had an impact on this Bill, we would have to find a way of considering the matter.

As I said in Committee on Clauses 1 to 3, which relate to the Judicial Appointments Commission, the practical steps to create a commission should not be rushed and will take time. We aim to have the commission in place by spring 2005, so there is some time available to us. Clauses 4 and 5 come into effect only after the devolution of criminal justice. I hope that in the light of that the noble Lord, Lord Glentoran, will feel able to withdraw his amendment.

Photo of Lord Glentoran Lord Glentoran Conservative

My Lords, I thank the Lord President for that response. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 21 [Statutory rules]:

Photo of Baroness Amos Baroness Amos President of the Council, Privy Council Office, Lord President of the Council and Leader of the House of Lords (Privy Council Office)

My Lords, during the debate in Committee we accepted a number of amendments that changed references in the Bill from Secretary of State, meaning the Secretary of State for Constitutional Affairs, to Lord Chancellor. These further amendments serve to tidy up the remaining references to the Secretary of State for Constitutional Affairs that are found in Schedule 3 to the Bill. The amendments to Clause 21 are consequential. I beg to move.

Photo of Lord Glentoran Lord Glentoran Conservative

My Lords, we support this group of amendments.

On Question, amendment agreed to.

Photo of Baroness Amos Baroness Amos President of the Council, Privy Council Office, Lord President of the Council and Leader of the House of Lords (Privy Council Office)

moved Amendments Nos. 29 to 34:

Page 10, line 30, after "section" insert "8(3)(c) or"

Page 10, line 34, leave out from "made" to end of line 36 and insert "under this Act may include supplementary, incidental, transitional or consequential provisions."

Page 16, line 10, leave out "Secretary of State" and insert "Lord Chancellor"

Page 16, line 15, leave out "Secretary of State" and insert "Lord Chancellor"

Page 17, line 31, leave out "Secretary of State" and insert "Lord Chancellor"

Page 18, line 23, leave out "Secretary of State" and insert "Lord Chancellor"

On Question, amendments agreed to.