"Removal or suspension from listed judicial offices

– in the House of Lords at 11:32 am on 29th April 2004.

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In section 7 of the 2002 Act in subsection (5) (agreement of the Lord Chief Justice required to the removal or suspension of a person from a listed judicial office) for "without the agreement of" substitute "except after consultation with"."

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

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 1.

For those of us who have worked on this Bill previously it will be no surprise that the Government have taken the opportunity in another place to reintroduce this clause which was removed on Report in this House. Its effect is to amend Section 7(5) of the 2002 Act to remove what would otherwise be the Lord Chief Justice's veto over the removal of a listed judicial office holder after a proper process of inspection, inquiry and hearing.

I sought at Report to set out clearly why the Government thought that it was important to retain this provision and to offer what I hoped were appropriate reassurances. I am happy to do so again, although perhaps not quite at the same length. I want to start by making it absolutely clear that if we thought that there was any conceivable risk to judicial independence, we would not be taking this step.

I wish to describe what will happen after devolution of justice. Perhaps that is the first point that I should mark. We are not talking about provisions that will come into effect this year. We know not when they will come in. These provisions will come into effect only when devolution has occurred and, subsequent to devolution, when the Government judge that there is sufficient stability and confidence for policing and judicial affairs to be dealt with in Northern Ireland. So we are not talking about the current environment which was discussed in a very interesting debate last night.

I turn to how the process will work under the provisions as amended by the Commons. We have discussed this. They go to the heart of the issue of whether there is any risk that a judge could wrongly be dismissed as a consequence of these measures. We should be clear about who it does not apply to. It will not apply to the removal of a Lord Chief Justice, a Lord Justice of Appeal or a High Court judge appointed before devolution of judicial functions. The removal of those office holders, were they to be found guilty of misbehaviour, would require not only the recommendation of a removal tribunal but also an Address to both Houses of Parliament. Therefore, this clause does not refer at all to that category of judicial office holder.

I turn to the remaining category of judge, I shall seek to put this more succinctly than I did on Report although I hope it was helpful that I talked in deconstructed detail at that stage. In summary, what the 2002 Act says—it is good that it does so—is that before any judge in Northern Ireland can be removed, there has to be a consideration of the case for removal by a tribunal of three people. That is different from what happened previously when effectively it was a decision of the Lord Chancellor. The three people are composed as follows: two of them are judges and one of them is a lay person. That begs the question: who chooses the two judges who will sit on the panel of three? The situation is clear. Those two judicial members will be chosen by the Lord Chief Justice of Northern Ireland in all cases except for High Court judges and above, when the Lord Chancellor will choose those two judges. Noble Lords may ask who will choose them when the Lord Chancellor is abolished—an issue that we are discussing in Select Committee—and the answer to that is the Secretary of State for Constitutional Affairs. He will choose them after consultation with the Lord Chief Justice of England and Wales, the Lord President of the Council in Scotland, and the Lord Chief Justice of Northern Ireland.

The point I am labouring is that this panel of three will be senior significant judges appointed by people who have the strongest responsibility possible to protect the independence of the judiciary. I go further. The Lord Chief Justice of Northern Ireland can himself decide to chair any tribunal except in respect of High Court judges and above. If he has any concerns at all, he can chair the relevant tribunal himself. If he decides not to do so, it is beyond reason to think that he would not put on to the panel of that tribunal two judges in whom he had considerable confidence regarding their judgment and thoughtfulness. That point does not need to be laboured.

Therefore, the tribunal—it is proper that a tribunal should look into judicial misconduct or incapacity—is dominated by the judiciary but not so dominated that there is no scope for a lay person also to be present to give a view from a wider perspective than just that of the judiciary. We cannot see—I have scratched my head subsequently about this—where there is risk or harm in that. Noble Lords might therefore ask why we are doing this. We are doing it because it sits in the context of Northern Ireland politics and how we try to move forward in those difficult circumstances.

The Government remain firmly committed to the Belfast agreement. We have tried steadfastly to create the conditions that will allow us to get the devolved institutions up and running and operating successfully. It is self-evident to all of us that there have been problems along the way and that the process was never going to be easy. However, the situation in Northern Ireland has improved considerably compared with what it was previously, albeit it is not as good as any of us wish. I refer to the important and timely debate that we had yesterday in that regard.

The criminal justice review flowed directly from the Belfast agreement. It goes to the heart of how you seek to build confidence in the criminal justice system in civil society across all communities in that society in ways that will allow for healing, harmony and for affairs in the future to be run much more in Northern Ireland itself. The Bill is about implementing that review in a way that will help us to move forward.

In short, the Criminal Justice Review led to the Justice (Northern Ireland) Act 2002, but that Act included one measure that was not in the review; namely, a power of veto by the Lord Chief Justice. In the discussions that took place around the Hillsborough agreement, and as part of that agreement, it was argued and the Government accepted that it was not right for any one person to have a power of veto over a decision, or rather a recommendation, made by such a tribunal. I have been privileged to have experience of two Lords Chief Justice for Northern Ireland in my role as Northern Ireland courts Minister, and I find it hard to believe how anyone would doubt the integrity of such people. Nevertheless, in the society of Northern Ireland, one might with a bit of imagination understand why some would feel it important that no one person would ever be able to appoint a judge, or recommend or veto a judge's dismissal. That is at the heart of the issue.

If I thought that the provision was likely to threaten judicial independence as a consequence, I do not believe that I would be happy to stand at this Dispatch Box. However, for the reasons that I have explained, I cannot see how a tribunal, constituted as it is, could bring forward a recommendation over which a Lord Chief Justice in Northern Ireland would wish to exercise a veto. I have given serious thought to that.

The Hillsborough agreement agreed with that measure because it was part of a process of moving forward. The Government think that this House should support the Commons because we have to be seen to stand by our agreements if we are to put pressure on other people to come up to the mark and stand by theirs. That is the nub of the matter. Therefore, I commend the Commons amendment to the House.

Moved, That the House do agree with the Commons in their Amendment No. 1.—(Lord Filkin.)

Photo of Lord Kingsland Lord Kingsland Conservative 11:45 am, 29th April 2004

rose to move Amendment No. 1A, as an amendment to the Motion that this House do agree with the Commons in their Amendment No. 1, leave out "agree" and insert "disagree".

Photo of Lord Kingsland Lord Kingsland Conservative

My Lords, the subject matter of the amendment has been debated on no fewer than three occasions in your Lordships' House—at Second Reading, in Committee and on Report—so I shall be brief in moving my amendment.

Until the passage of the Justice (Northern Ireland) Act 2002, the dismissal of High Court judges in Northern Ireland, like the dismissal of High Court judges in England and Wales, could take place only on an address by both Houses of Parliament to the Queen.

When that Act is implemented, the situation for newly appointed High Court judges in Northern Ireland, but not for any class of High Court judges in England and Wales, will change. Henceforth, alleged misdemeanours will be considered by a committee consisting of two senior judges and one lay person. If that committee subsequently recommends dismissal, it can take effect only if consent is given by the Lord Chief Justice of Northern Ireland. In other words, the Lord Chief Justice of Northern Ireland has a veto.

If Clause 5 were to be enacted, the situation would change because the veto of the Lord Chief Justice of Northern Ireland would be removed. Thus, in the space of less than two years, noble Lords would be facing the loss by newly appointed High Court judges in Northern Ireland of not one constitutional protection, but two. Newly appointed High Court judges in Northern Ireland no longer enjoy the protection of an address by both Houses of Parliament to the Queen, by virtue of the 2002 Act. In addition, if the Bill is passed, they will lose the protection of the requirement that the Lord Chief Justice of Northern Ireland concurs with their dismissal before it takes place.

What a contrast with the situation in England and Wales. Under the Government's proposals in the Constitutional Reform Bill, High Court judges in England and Wales will not only retain the protection of an address by both Houses of Parliament but also, if the Bill goes through in its present form, acquire the additional protection of the consent of the Lord Chief Justice of England and Wales. What kind of signal is that sending to the judiciary in Northern Ireland?

Today, and on previous occasions, in your Lordships' House, the Minister has given a number of explanations of why the change is required. First, the noble Lord says that it is required by the Criminal Justice Review. In my submission, that is a groundless suggestion. The conclusions of the review were known to the Government when the 2002 Act went through Parliament yet the veto of the Lord Chief Justice of Northern Ireland was inserted into that Act. Moroever, nothing in the text of the review requires the veto of the Lord Chief Justice of Northern Ireland to be removed.

Secondly, it has been said, not only by the Minister, but by his honourable friend in another place, that the veto is unnecessary in any case because, in practice, it would never be used. If the veto is unnecessary, why on earth did the Government strive so hard to insert it in the 2002 Act? Equally, if it is unimportant, why are they striving so hard to remove it from the Bill?

The third reason that the Minister has given is that the requirement to remove the veto of the Lord Chief Justice of Northern Ireland is part of the Hillsborough agreement. That agreement is not a treaty. It does not bind your Lordships' House or another place. It is a political agreement. Noble Lords are entitled to take an entirely fresh view about whether the contents of the agreement merit enshrinement in an Act of Parliament. Moreover, if, in the opinion of the Minister the veto will never be used, why was it even on the agenda of the Hillsborough agreement? If it is so unimportant, why did it trouble the negotiators at Hillsborough?

The Minister has given a fourth reason this morning, which is that the membership of the disciplinary committee will be composed of senior judges chosen by the Lord Chancellor. We all agree that Lord Chancellors, present and past, have all been extremely well qualified to make such a selection. However, if the Government get their way in the Constitutional Reform Bill, we understand that the Lord Chancellor will be replaced by a Secretary of State for Constitutional Affairs who, in all likelihood, will be a political animal, probably without a legal qualification. What qualifications will the Secretary of State for Constitutional Affairs, probably located in the House of Commons, have in future to choose those senior members of the tribunal?

The most startling contrast of all is that between what the Government are trying to do in their Constitutional Reform Bill and in this Bill. In the Constitutional Reform Bill, they are saying that the judges do not have sufficient protection and that Bill is designed to give them additional protection. I find it extremely difficult not to conclude that the philosophy underlying what the Government are trying to do in this Bill moves in the opposite direction; and, in my submission, there are, as a consequence, real dangers to the United Kingdom.

The tradition of judicial independence in Northern Ireland is long-standing and deep-seated, no better manifested than in the courageous decisions of so many High Court judges during the past 35 years. We must not put that at risk. If the Government want to have a system to protect judges which matches the quality of the system we have in England and Wales, I urge them to accept my amendment, wait until the Constitutional Reform Bill is enacted and then reconsider the matter. I beg to move.

Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 1, leave out "agree" and insert "disagree".—(Lord Kingsland.)

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

My Lords, I will seize the moment. I will not respond at great length because we have previously engaged in these issues. I should make a slight correction. I am advised that when I opened the debate on the amendment, I referred to the Lord Chancellor having a veto when of course I meant the Lord Chief Justice. I am also in favour of the Lord Chancellor having lots of vetoes—but perhaps that is another matter.

The issue turns on the question: is there risk and why does it matter? I can but emphasise the points I made previously. I cannot conceive how there is a risk that a judge could be wrongly dismissed—and that would matter massively if it were so—when the procedure for investigating an apparent complaint or an issue of incapacity is so much under the control of the Lord Chief Justice of Northern Ireland. And so it should be. It is right that the Lord Chief Justice has the ability to chair the committee and appoint both its judicial members. It is also right in those very rare circumstances that it would not be he because they are of the High Court or above, and that they are determined by the Lord Chancellor or, subsequently, the Secretary of State for Constitutional Affairs, after consultation with the most senior judicial figures in the United Kingdom.

I should also have marked the fact that the Lord Chief Justice would also determine the rules and procedures of the tribunal. Therefore it is a process properly under the authority, shadow, influence and direction of the Lord Chief Justice of Northern Ireland. But that is distinct from saying that the Lord Chief Justice of Northern Ireland, acting alone, should have the ability either to sack or to block the dismissal of a judge. Even though I have put on record my view about the quality and integrity of the Lord Chief Justices I have met in Northern Ireland, it does not require much imagination to understand why that issue might cause anxiety in some quarters.

The Lord Chief Justice would not be able to block a recommendation from a tribunal, but would be able to ensure that its recommendation was likely to be as fair and as proper as it is conceivable to imagine. And it matters because we have to stand by our agreements if we are to expect others to do so. There is therefore no harm and this measure, as affirmed by the Commons, is right and proper for this House to support.

Photo of Lord Kingsland Lord Kingsland Conservative

My Lords, I am grateful to the noble Lord for his response and I shall be even briefer. I want to react only to one matter that he raised concerning the Lord Chief Justice of Northern Ireland being able to block a disciplinary tribunal decision.

I wonder whether the noble Lord has chosen the right description for such potential action by the Lord Chief Justice of Northern Ireland. If, as I hope he will, the noble Lord accepts that Lord Chief Justices of Northern Ireland have been appointments not only of impeccable quality but also of unimpeachable independence, the only reason why a Lord Chief Justice of Northern Ireland would wish to veto the decision of a disciplinary committee would be on jurisprudential grounds. In my submission, the word "block", in those circumstances, is wholly inappropriate.

The Minister and I have had several exchanges on this matter during the past month. I have great respect for him. He knows that on this occasion I disagree and therefore I would like to test the opinion of the House.

On Question, Whether the said amendment (No. 1A) shall be agreed to?

Their Lordships divided: Contents, 74; Not-Contents, 134.

Division number 1

See full list of votes (From The Public Whip)

Resolved in the negative, and amendment disagreed to accordingly.

On Question, Motion agreed to.