Clause 1 - Transfer to Lord Chancellor of functions relating to Judicial Appointments Commission

Justice (Northern Ireland) Bill [Lords] – in a Public Bill Committee at 9:10 am on 25th March 2004.

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Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party 9:10 am, 25th March 2004

I beg to move amendment No. 47, in

clause 1, page 1, line 5, leave out from 'Schedule 1' to end of line 7.

Photo of Joe Benton Joe Benton Labour, Bootle

With this we may discuss the following amendments: No. 52, in

schedule 1, page 12, line 4, at end insert

'In section (1) of the 2002 Act, leave out ''of justice''.'.

No. 53, in

schedule 1, page 12, line 8, at end insert—

'(a) 2A section 4 is amended as follows,

(b) In subsection (2) of section 12 after the words ''Lord Justice of Appeal'' at end insert ''or a judge of the High Court''.

(c) leave out section 12A.'.

No. 54, in

schedule 1, page 12, line 24, at end insert—

'(1) In section 9 leave out the words ''Lay Magistrate'' wherever they occur and substitute ''Justice of the Peace''.

(2) leave out section 10.'.

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

May I say how much I look forward to the proceedings of the Committee, Mr. Benton? I am sure that we all want to remain as well focused as we can.

Amendment No. 47 is a technical amendment that would pave the way for more substantial amendments to the schedule. I shall not refer much to the text of that amendment, but it is appropriate to say

something about the other amendments. The substantive amendments in the group are amendments Nos. 55 and 28. The latter expresses our disdain for this legislation and this clause. When I say ''our disdain''—

Photo of Joe Benton Joe Benton Labour, Bootle

Order. We are not discussing amendments Nos. 55 and 28. We are discussing amendments Nos. 52 to 54 with amendment No. 47.

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

My apologies, Mr. Benton. I assumed that we were dealing with all the amendments listed under clause 1, but I see now that amendment No. 55 is on a separate line, so we shall leave the discussion on that until later. That enables me to deal in more detail with the amendments that I have tabled to schedule 1. Amendment No. 47 enabled me to table the other amendments to schedule 1. Amendment No. 51, which has not been selected, is also technical. The substantive amendments are amendments are Nos. 52 to 54. Amendment No. 52 would amend section 1 of the Justice (Northern Ireland) Act 2002.

The reason why I tabled the amendment is quite simple. I approach this legislation with a fairly fresh eye, not having served on the Committee that considered the 2002 Act. Looking at section 1 of that Act, which is entitled

''Guarantee of continued judicial independence'',

I was struck by the fact that it refers to the responsibility to

''uphold the . . . independence of the judiciary.''

That is an admirable sentiment, but why is the responsibility limited to those with responsibility for the administration of justice? It seemed to me that that duty should rest with all in government. All Ministers experience occasions on which they deal with the law and the courts, so it would be right for the duty to uphold the administration of justice to be general in its application, rather than limited as it is under section 1.

My next point also concerns a substantive matter. Section 4 of the 2002 Act relates to appointments of the Lord Chief Justice, Lords Justices of Appeal and High Court judges. It draws a distinction between the provisions for appointing the Lord Chief Justice and lord justices of appeal and for appointing High Court judges. The latter appointments come under the purview of the Judicial Appointments Commission and the procedures set out in section 12A of the Judicature (Northern Ireland) Act 1978, which was added by the 2002 Act. The amendments that I have tabled would treat High Court judges in the same way as the Lord Chief Justice and Lords Justices of Appeal. Will the Minister tell us why appointments of High Court judges have not been treated in the same way?

I want to draw the Minister's attention to the background context. Historically—I am referring to the situation in Northern Ireland under the previous devolved arrangements—a significant distinction was drawn between appointments. Under the Government of Ireland Act 1920, appointments of High Court judges, Lords Justices of Appeal and the Lord Chief Justice were made by the Lord Chancellor in Westminster, whereas appointments of county court

judges and lesser judicial appointments were made by the Government of Northern Ireland established under the 1920 Act. Under those arrangements, the devolved Administration had a role in making appointments up to the level of county court judges, but appointments of High Court judges and above were matters reserved for Westminster.

That was an important measure designed to ensure the independence of the judiciary at that level, and to ensure that there was no possibility of the local Administration exercising partial influence over senior judicial appointments. I should not have to spell out to Members of the Committee the significance of that. Under the 2002 Act, that safeguard is broached, and High Court appointments come under the influence of the devolved Administration. The more senior appointments of Lord Justice and Lord Chief Justice are reserved for a different procedure and can be made only by High Court judges.

By transferring the appointment of High Court judges into the purview of the devolved Administration, we are preconditioning the appointments of Lord Chief Justice and the lord justices of appeal. Is that wise? I have grave reservations about it. I am not sure to what extent that point was considered in the debate on the 2002 Act, but it is worth discussing it in this Committee and I look forward to hearing what the Minister has to say. We must ensure that, with regard to senior judicial appointments at the level of the High Court and above, we limit any partial influence that might come to bear.

Amendment No. 54 may be regarded as self-indulgence on my part. I cannot understand why the historic term ''justice of the peace'' is to be discarded in favour of the ugly term ''lay magistrate''. Why should we replace a phrase that has considerable antiquity, is familiar to people, and carries an indication of the nature of the role, with a comparatively flat and ugly phrase?

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I think that I can give the right hon. Gentleman the answer. The Government do not like the lay magistracy. Throughout their time in office they have shown a desire to reduce it to insignificance and to limit it to menial tasks in the courts in both Northern Ireland and in England and Wales. The terminology is linked to that.

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

That may very well be the case, although on that specific point the Minister may reply that we in Northern Ireland took a huge step towards reducing the significance of the role of justices of the peace in 1935. We restricted their role compared to their role in England and Wales and confined petty sessions work to resident magistrates, as they were then called. That name has also been changed and I disapprove of that too.

The purpose of the amendment is simply to ask the Minister why an historic term that is meaningful to people is to be replaced by an ugly flat phrase that no one will consider it an honour to have attached to their name. It is a simple point but it encapsulates a broader

point too. The Government have a tendency to wish to change things and rarely are the changes for the better. I can think of other name changes that have occurred in Northern Ireland, and also some here. I might even be inclined to say, Mr. Benton, that the name change in amendment No. 55, to which you directed me not to speak at this stage, is another example of this tendency to change things not for the better but for the sake of change. Amendment No. 54 might be slightly self-indulgent on my part but amendment No. 53 is a matter of significance. I would like to hear what the Minister has to say on that.

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office

I thank the right hon. Gentleman for the way in which he moved his amendment. As the Bill largely deals with the implementation of the Justice (Northern Ireland) Act 2002, there is a danger of revisiting many of the basic principles that were decided then by Parliament. Many arise from the review of the criminal justice system in Northern Ireland of 2000 and so were the subject of debate for some period before then.

I have no objection to hon. Members wishing to re-raise issues that they feel are significant, but for the good administration of justice and the progress of legislation we cannot keep revisiting issues that have been dealt with many times, although that might be counter-cultural in terms of many of the debates that take place on this subject in this House and elsewhere. I was on the Opposition team in 1994–95 when Mo Mowlam, as shadow spokesman, asked a group—I forget which—whether, as we were a bit tight for time, we could go back no earlier than 1920. I understand this, but there is a danger. No doubt there will be other times when there are issues of principle that have essentially been decided but which will still be the subject of debate. We need to bear in mind the need to move forward on the basis of matters that have already been agreed.

As hon. Members will be aware, the 2002 Act provides for the commission to be established after the devolution of justice functions to the Northern Ireland Assembly. I am sure that we will return to that on later amendments. The commission would be appointed by and make recommendations to the First Minister and Deputy First Minister. The First Minster and Deputy First Minister would also exercise the functions ancillary to the commission such as the making of grants and staffing. The intention to establish the commission in advance of devolution was clearly stated not only in the of criminal justice review but in the implementation plan, which was updated in June 2003. That is achieved by clause 1 and schedule 1, which transfer the functions of the First and Deputy First Minister to the Lord Chancellor.

As has been said, amendments Nos. 47 and 51 would widen the scope of schedule 1 to allow for amendments Nos. 52 to 54. What would amendment No. 52 do? It would amend section 1 of the Justice (Northern Ireland) Act 2002, which refers to those who have the duty to uphold the continuing independence of the judiciary. Under the amendment, that duty would apply to ''the administration'' rather than specifically those with

responsibility for the administration of justice. I accept that that raises an interesting point, and I have given it some thought since the amendment was published. I am not sure that I agree with it, but it demands further reflection—if not in the context of this Bill, in the context of the Constitutional Reform Bill in another place. I assure the right hon. Gentleman that I will reflect further on the suggestion.

The purpose of amendment No. 53 is to treat the appointment of High Court judges in the same way as the appointment of the most senior judicial posts. That is not what the criminal justice review recommended. It is clear that different arrangements should apply to the appointment of the Lord Chief Justice and lord justices of appeal, as they have responsibilities that could go beyond Northern Ireland. We are also dealing with a much smaller pool of potential appointees. The 2002 Act is deliberately framed to make different provision for the most senior judicial appointments, and we see no case for departing from that position or applying those arrangements to High Court judges.

Amendment No. 54 would remove the provision for the new judicial office of lay magistrate and refer instead to the office of justices of the peace. The criminal justice review saw the need for a new office of lay magistrates with a defined role in the criminal justice system, taking on some, but not all, functions of the justices of the peace. According to the review, some of the other functions are rarely exercised anyway. Existing JPs will be able to apply for the new post of lay magistrate, and I fully anticipate that many will do so.

We do not see why we should not proceed with appointments to the new judicial office with its defined functions, especially as that issue was debated fully during the passage of the 2002 Act. Accordingly, we cannot recommend that the amendments be made.

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

I thank the Minister for his brief and entertaining reply to the amendments. I say ''entertaining'' advisedly. I was struck by his opening comment that we cannot keep coming back to the issues, because we do. This is the second criminal justice Bill for Northern Ireland in a couple of years, and we have had three police Acts in the past few years. We keep returning to the issues, and in coming back, we can perhaps have second thoughts.

The Minister's other amusing comment was that the Bill was designed to implement the 2002 Act and that we should not revisit it. The 2002 Act is clear that the provisions for appointing judges and the Judicial Appointments Commission would come into operation on devolution of criminal justice matters. The Bill is designed to amend rather than implement the 2002 Act, which means that we are revisiting the provisions and changing them. That demands some explanation from the Minister, as what is happening is the reverse of what he said. His comments certainly helped to keep us amused.

I thank the Minister for his undertaking to reflect on amendment No. 52. I shall not press the

amendments, partly because of that undertaking but also because that allows me to pursue the issue in amendment No. 53 at another stage. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General 9:30 am, 25th March 2004

I beg to move amendment No. 55, in

clause 1, page 1, line 5, leave out 'Lord Chancellor' and insert

'Secretary of State for Constitutional Affairs'.

I welcome you to the Chair, Mr. Benton, and also welcome the Minister, who is my pair, although I have never been allowed to pair with him in the six years since I have been in the House. I wonder whether we should not have a special clause in the proposed civil partnerships Bill to ensure that the relationship is recognised and can be exercised in future.

The right hon. Member for Upper Bann (Mr. Trimble) was rather shocked to see amendment No. 55 on the amendment paper. He felt that there was an incompatibility between that and my stated views on the future of the office of Lord Chancellor. I reassure him at the outset that this is a probing amendment. Its purpose is to enable the Committee to consider the implications that have arisen from the change in the Lord Chancellor's status since the Justice (Northern Ireland) Act 2002 was passed, and also to find out from the Government what impact that might have on the Bill if further changes occur.

The Lord Chancellor is described in the Bill as the Lord Chancellor, but that is no longer his title. As a result of changes announced last summer, he has become the Secretary of State for Constitutional Affairs and Lord Chancellor. If the Prime Minister had had his way, that latter title would have disappeared; it was preserved only when it was discovered that it could not be magicked away because it featured in more than 500 pieces of primary legislation, and that the Lord Chancellor had set statutory functions.

Nevertheless, as Lord Woolf made clear in debates in the upper House on the future of the Constitutional Reform Bill and the Government's proposals, the Government no longer have the Lord Chancellor in his previous guise, but a hybrid that causes the judiciary a great deal of anxiety, because it mixes functions of a purely political nature with the previous duties aimed specifically at the administration of justice and the representation of the judiciary and judges' rights in Government.

I would therefore like to know at the outset why, notwithstanding those changes, the Bill still uses the expression ''Lord Chancellor''. I hope that the Minister will be able to answer the question, because it would be educational for the Committee to find out why that title has been retained rather than the long title of Secretary of State for Constitutional Affairs and Lord Chancellor.

The second issue that the Committee should consider is what will happen if the Constitutional Reform Bill goes through in its present form and intention. In the schedule to that Bill, will there be a move to re-word this legislation so that for ''Lord

Chancellor'' we substitute ''Secretary of State for Constitutional Affairs'', and if so, what will that Secretary of State's obligations be in respect of Northern Ireland? Will he, as has been suggested, be bound by the special statutory function, which it appears that the Government wish to give to him, to uphold the independence of the judiciary, or will that function extend only to England and Wales? How will his Northern Ireland functions be discharged, and how do the Government intend, in those circumstances, to provide adequate statutory protection to the judiciary in respect of the role previously exercised by the Lord Chancellor?

The issue is simple but raises matters of considerable complexity. It seems to me that in the way in which the Bill has been drafted, the Government have—probably intentionally—glossed over the matter.

Photo of Mr Andrew Hunter Mr Andrew Hunter Independent Conservative, Basingstoke

I echo the comments of other hon. Members in welcoming you to the Chair, Mr. Benton. In reply to my hon. Friend, I may say that I am heartily relieved to hear that this is a probing amendment. When I first read it, I reacted with incredulity, since at first sight it runs entirely counter to the main thrust of opposition to the Bill that our party set out on Second Reading: that aspects of the Bill amounted to politicisation of the process of judicial appointments.

I listened with interest to my hon. Friend. I concede that there are matters to be considered and that he raises valid questions. I, too, hope that the Minister's answers will satisfy us. However, I make the point with the utmost brevity to my hon. Friend, that although his is a probing measure, it probes in the wrong direction, because were that route to be followed, it would advance and enhance the very politicisation of the process to which we object.

In time, it is likely that the Secretary of State for Constitutional Affairs may be a man or woman with no legal background or experience, who would therefore, in my crude definition, be an ordinary party politician. It would be disadvantageous for such a person to have the power ascribed in the Bill to the Lord Chancellor.

Photo of Andrew Robathan Andrew Robathan Conservative, Blaby

My hon. Friend is pursuing an interesting argument. Does he think that a so-called ordinary party politician would be better or worse than someone appointed on the basis of having shared a flat with the Prime Minister 20 or 30 years ago?

Photo of Mr Andrew Hunter Mr Andrew Hunter Independent Conservative, Basingstoke

My hon. Friend scores a valid point. More seriously, in my judgment the further judicial appointments can be taken from elected party politicians, the better.

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

I, too, am relieved at the reason given by the hon. Member for Beaconsfield (Mr. Grieve) for tabling the amendment. I thank him for raising this serious matter, which I hope the Minister will consider carefully.

As I said in our debate on previous amendments, the measure significantly amends the 2002 Act, which made it clear that the provisions on judicial

appointments would come into operation only on devolution, yet now we are bringing them into effect in advance of devolution. The Minister should bear in mind the probabilities with regard to devolution, which was suspended in Northern Ireland in October 2002; there is no immediate prospect of its being resumed, although the Prime Minister made efforts this week on the matter. The prospects are not good, and it is a brave person who would say that devolution might be resumed in the next year or two. Even if devolution in Northern Ireland is resumed, there is little prospect of justice matters being devolved in the near future.

I said some time ago that there was not a sufficient basis for confidence in the community that the Administration in Northern Ireland could cope with the issues of policing and justice until there were some significant political developments, which are not in prospect. I advert to these matters to make the point that the arrangements in the Bill, which are not part of the 2002 Act but which bring forward parts of that measure to operate prior to devolution, are likely to be in effect for some time. I would like the Minister to reflect on that; the proposal for justice matters and policing to be devolved to the Administration in Northern Ireland and function normally, which was the intention of the 2002 Act, is not likely to be implemented for some time. Taking that into account, the points made by the hon. Member for Beaconsfield come significantly into play, because if the Government's proposals to change the legal system and abolish the Lord Chancellor's post take effect, what on earth will happen?

The post of the Lord Chancellor has evolved, and it was until recently a non-political position, particularly so far as the administration of justice was concerned. The new Secretary of State for Constitutional Affairs is a different sort of animal. That raises the question of what will happen if, in three or four years, justice matters have still not been devolved in Northern Ireland and we have no Lord Chancellor. The significant function of the administration of justice will be exercised by someone who is largely, if not wholly, a party political creature. There are some very serious questions here, and I am not sure what the answers to them are likely to be, but I want to direct the Minister's mind towards the prospect of these arrangements lasting for quite some time into the future.

I hope that I am not breaking any confidences when I say that on Tuesday, when one of the gentlemen who helicoptered into Hillsborough asked me how long I thought that the people in Northern Ireland, particularly Unionists, would be prepared to endure a situation in which the Northern Ireland Assembly was not functioning, my reply was, ''Last time, we managed for 25 years without it.'' We could be looking a long way into the future here: this is not just a temporary measure and should not be considered as such, because it could operate for years, perhaps decades. I should like the Minister to reflect on that and I look forward to what he has to say.

Photo of Nick Palmer Nick Palmer Labour, Broxtowe

I welcome you to the Committee, Mr. Benton. Despite the Front

Bench spokesman's lukewarm endorsement of his own amendment, I find it quite persuasive. There is a lot of sense in it, and unless the Minister makes powerful arguments against it, I am minded to oppose any leave to withdraw it.

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office

That is a temptation that I might find myself able to resist. I welcome the hon. Member for Beaconsfield, who rightly drew attention to the fact that he is my parliamentary pair, but I must reject the slur on the electorate that he implied. We have been unable to use that arrangement because the electorate in their wisdom, or otherwise, have decided to give us such a substantial majority in the House that normal pairing arrangements have been suspended for a period of time. Welcome though it is to have a parliamentary pair, I do not think that he should hold his breath for such happy circumstances—from his point of view—to reassert themselves.

The hon. Gentleman went on to describe this as a probing amendment. It is probing in an odd way. The clause was changed in the other place on the instigation of an amendment tabled by Lord Kingsland. He is not, so far as I am aware, a card-carrying member of the Labour party, nor of the Liberal Democrats, or even of the Ulster Unionists. So far as I am aware, Lord Kingsland represents Conservative interests in the other place. Indeed, in a previous incarnation, as Mr. Christopher Prout, he was an MEP. Again, it would not break any confidence to reveal that he did not represent our party, the Liberal Democrats, or the UK Independence Party.

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office

Exactly. What is being sought is an amendment to a concession by the Government in response to pressure from the Conservative party.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

Perhaps I am trying to rub it in a bit, but as we are debating the matter in this House, it would be useful to hear the reasoning behind the Minister's acceptance of the change and on the other points that I have raised.

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office 9:45 am, 25th March 2004

Quite simply, we took the point made in the other place that, for conformity and in current circumstances, the amendment relating to the office of Lord Chancellor had merit. That shows that we are a listening Government. This proposal, however, is slightly odd. I can only hope that, in the course of Committee proceedings, communications up and down the Corridor between Conservative spokespersons in the other place and those here will improve. [Interruption.] The hon. Member for Blaby (Mr. Robathan) wants to expound on communication.

Photo of Andrew Robathan Andrew Robathan Conservative, Blaby

Once upon a time, I wrote to ask to be the Minister's pair, and he kindly helped me to get another pair, whom I have not used for six years either. However, that is irrelevant.

Surely the point is that the amendment is designed to try to find out where the confusion lies in the

Government's mind. There must be some confusion, because on the one hand they are trying to abolish the post of Lord Chancellor and on the other they are talking about it in the Bill. We are not the Government—and incidentally, as a Back Bencher I do not speak for the Conservatives as a whole. As a humble Back Bencher, I am asking the Minister a question. I understand why we have made the proposal: to find out what the Government intend to do, because there seems to be no clarity of purpose whatever.

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office

Obviously, there has been a failure of communication not only between the Lords and the Commons, but between Opposition Front and Back Benchers. Quite straightforwardly, we took the point that, with the current office of Lord Chancellor, there was a consistency in retaining that in the Bill. Of course, when the Constitutional Reform Bill has gone through the House, there will be a broader change.

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office

The hon. Gentleman implies that the will of the unelected House should prevail over the will of the elected House—a subject that we shall debate at considerable length.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

Before we get carried away, first, we have not heard the will of the elected House, because we have not considered the legislation, so the question of our will does not arise as yet, and secondly, I did not table the amendment just to be mischievous. I tabled it because it is important that the House should understand what the consequences of this legislation will be. The amendment provided an opportunity to pull the trigger, to let the House understand what will happen if the legislation is passed. I have raised a number of important points, to which I hope the Minister will reply. In particular, how will the Secretary of State, if the post of Lord Chancellor disappears, discharge his duties towards the Northern Irish judiciary?

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office

One presumes that, quite straightforwardly, the Secretary of State for Constitutional Affairs, who will be responsible for the judiciary, will assume the role of Lord Chancellor under the legislation that has been mentioned. That is why the Secretary of State was referred to in the first instance. However, we took the point made by the hon. Gentleman's colleagues in the Upper House on the need for current conformity.

I say to the right hon. Member for Upper Bann that we are talking about an office that has been held, for example, by Lord Hailsham, who was generally agreed to be a good Lord Chancellor but who was also a highly political figure in the history of the previous century. Significant political figures have held that post.

Notwithstanding that, the crucial question is why we are bringing forward the establishment of the Judicial Appointments Commission to before devolution. Quite understandably, that question has been asked. Recommendation 77 of the criminal justice review envisages the establishment of the commission post devolution of justice. It is, however, not against the early establishment of such a

commission. We consider that creating the commission—that has merit in itself, quite apart from any question of devolution of justice—is entirely within the spirit of the criminal justice review, because it recognised that the existence of the commission would enhance public confidence in the judicial appointments process. As hon. Members will be aware, the Government also propose such a commission in England and Wales, and there is already a Judicial Appointments Board in Scotland. Therefore, we should not delay a corresponding improvement to the judicial appointments system in Northern Ireland, which we believe will better meet the needs and expectations of the public.

Photo of Mr Andrew Hunter Mr Andrew Hunter Independent Conservative, Basingstoke

Some of us would be more convinced by the Minister's explanation if the genesis of the Bill did not lie also in the Hillsborough joint declaration and the political intent of that declaration. Although the Minister seeks to justify the early creation of the commission, he fails to convince us if we bear in mind the political origins of the Bill.

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office

I put it to the hon. Gentleman that the grounds for creating the Judicial Appointments Commission go beyond the question of the devolution of justice and of roles to the First and Deputy First Minister. The principles have their own merits. Circumstances that were not envisaged at the time of the original Bill now mean that there may be a delay. Should the benefits of a Judicial Appointments Commission—we already have the Judicial Appointments Board in Scotland—therefore be denied to the people of Northern Ireland in the interim? The commission has merits and is therefore worth bringing forward.

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

The reason why I originally sought to intervene was the Minister's reference to the criminal justice review. It might be helpful if the Committee reflects on what it said about the commission. Paragraph 6.102 of the review states:

''We believe that in Northern Ireland an appointments commission would enhance public confidence. But the factor which, above all, sways us in favour of recommending such a body is the imperative that if political responsibility for judicial appointments is to be devolved, the appointments process must be transparent and responsive to society's needs on the one hand, but on the other that it must be clearly seen to be insulated from political influence.''

The factor that ''above all'' swayed them in favour of recommending that body was devolution. The Minister is close to misleading the Committee, because bringing that system into operation in advance of devolution is a significant change to the review.

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office

I obviously beg to differ with the right hon. Gentleman. As he rightly pointed out, the first line of that paragraph states:

''We believe that in Northern Ireland an appointments commission would enhance public confidence.''

He is right that the devolution of justice would make the creation of an appointments commission necessary. We are arguing that the commission's merits make it desirable.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

My probing amendment was intended to be slightly tongue in cheek, because I was aware of

how the removal of the words ''Secretary of State'' had come about. However, I hoped that it would give us an opportunity to consider the consequences of future change. If the Constitutional Reform Bill ever goes through Parliament, which depends on the will of both Houses, the Government intend to attach a huge schedule that will include the alteration of the term in my amendment—the words ''Lord Chancellor'' will be replaced with ''Secretary of State for Constitutional Affairs''. That is why they were happy to give the concession in the House of Lords. However, as I sought to explain, the Secretary of State for Constitutional Affairs is not the same animal, as was made clear during debates in the House of Lords. Indeed, the Government may be beginning to accept that, because the Constitutional Reform Bill includes proposals for statutory protections for the independence of the judiciary as a result of the Lord Chancellor's removal.

I hoped that the Minister would be able to help the Committee on that point, but unfortunately we have been unable to develop that debate. The reason for tabling a probing amendment is to identify the key issue to the Minister so that his officials can brief him and he can respond if there is settled Government policy and briefing to be provided. I infer from how the debate has developed that no such briefing is available. I suppose that that has been useful in highlighting the black hole that exists on the matter, but I am slightly disappointed, because I had thought that the Government would by now have been able to provide a response.

It was never my intention to reverse what my colleagues in the House of Lords achieved, which was to get the Government to change the terminology. They had to do that, because it is nonsense to refer to the office of the Secretary of State while the office of Lord Chancellor remains and the function is that of the Lord Chancellor. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

Photo of Mr Andrew Hunter Mr Andrew Hunter Independent Conservative, Basingstoke

I want to put on record the opposition of the Democratic Unionist party to clause 1. The reasons are known, so I do not need to rehearse them in detail. Simply, we cannot accept the Minister's argument that there is merit in the proposal to create the procedures for judicial appointment before devolved government has been reconstructed. We are aware of his argument, but it is found unconvincing for the simple reason, to which I referred earlier, that the real origins of the Bill are to be found in the Hillsborough joint declaration.

The joint declaration was drawn up with the Irish Government to help to create a climate in which the Assembly and Executive could be reconstituted. The declaration, and this Bill that stems from it, are in part a gesture of appeasement towards those who have scant regard for the judicial process in Northern Ireland or elsewhere. Although I shall not force a Division, I register opposition to clause 1 standing part of the Bill for that reason.

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

I rise to support the points that the hon. Gentleman has just made. He is correct, as the Minister has failed to give any reason why the provisions are being brought into operation in advance of devolution, which is the main provision in the Bill. The Minister's only reason was a throwaway line that there are merits in the proposal. He did not say what they are, however, and no case has been argued for the clause.

The hon. Gentleman's points about the Bill's origins are also correct. The legislation, which talks so much about ensuring the independence of the judiciary and legal system, has its origin in a purely political deal that has nothing to do with the merits of the issue or the independence of the judiciary. A falsehood lies at the heart of the proposal, and I note that no one is prepared to rebut the hon. Gentleman's points and that the Minister has so far been unable to add any justification for the clause.

Photo of Desmond Swayne Desmond Swayne Conservative, New Forest West

I agree with the right hon. Gentleman that there seems to be no reason for introducing the Bill before devolution, and, furthermore, there are powerful reasons for waiting, given the lack of legislative slots for Northern Ireland. The Minister is conducting a consultation on several provisions that could, if he had waited, have been included in the Bill. There is a powerful argument for delaying the Bill rather than rushing it through for no apparent reason other than a political one.

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

I agree entirely with the hon. Gentleman, particularly bearing in mind the representations that the Minister is receiving from all sections of the community in Northern Ireland for rapid progress on antisocial behaviour legislation. Later, we will consider a clause that could facilitate that, but if the Minister had held the Bill back, he could have included such provisions as well. He would then have been introducing a measure that was would be received in the House and by the community in Northern Ireland.

I want to make a further point to the Minister on the general principle. Reference has been made to Lord Chancellors and political influence. The key point that the Minister should bear in mind is that, so far as I am aware, there has never been any suggestion in modern times that persons discharging the duties of Lord Chancellor have acted other than in a non-party manner with regard to judicial appointments and the administration of justice. Some may have been very party-political animals in a different incarnation, but there is no suggestion that recent appointees have not acted impartially when discharging their functions as Lord Chancellor, especially in terms of judicial appointments. That is what concerns me about the Bill.

I will not repeat the arguments that I made on Second Reading. The Minister knows that it is my considered view that the creation of the Judicial Appointments Commission will result in more political influence on judicial appointments than hitherto. It will bring into the commission a number of people, admittedly a minority, who will be there for

purely political reasons and with largely political agendas. This is a wrong step. I would even oppose it being done after devolution, but to do so now will give certain political parties an influence over judicial appointments.

At the moment, appointments are made by the Lord Chancellor in a non-party political way, as most people, including people in Northern Ireland, accept. The clause, however, will allow political parties to influence judicial appointments, which is not a wise move in the present situation. That goes to the principle of the matter and it is why I oppose clause stand part. Like the hon. Member for Basingstoke (Mr. Hunter), having made my point, I do not wish to detain the Committee by dividing it.

Photo of Eddie McGrady Eddie McGrady Social Democratic and Labour Party, South Down 10:00 am, 25th March 2004

I rise briefly to respond to certain aspects of the debate. I do not intend to enter into any of the technical and legal areas, as I am ill equipped to do so. I simply point out that one of the necessities for the future of good government in Northern Ireland is openness and clarity about what is happening in the criminal justice system. It is important that ordinary men and women in Northern Ireland—the lay people—have a clear understanding of how matters are dealt with in the judicial system. They do not have that now. I see no great disadvantage in the representatives of the people of Northern Ireland coming together, through their various party groupings, to map out and propose a way forward that will satisfy the aspect of change that is required.

It is not a fault or an adverse factor that there is a political genesis to the clause; it is the expression of the will of the people of Northern Ireland. The office of Lord Chief Justice is lofty and mysterious to the ordinary person, particularly in the north of Ireland. This process, when it comes to fruition—I hope that devolution take place in whichever way—will enhance the reputation of the judiciary and the criminal justice system in terms of its openness. That openness will undoubtedly give it integrity and that integrity will be protected by its openness. I have no hesitation in lending my support and that of my party to the clause.

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office

I am not entirely convinced by the logic of the arguments advanced by the right hon. Member for Upper Bann and the hon. Member for Basingstoke. The 2002 Act provides for the creation of a Judicial Appointments Commission, to which I think the right hon. Gentleman objected in principle. However, as the creation of a Judicial Appointments Commission is already enshrined in statute, we are arguing about timing: whether we appoint a Judicial Appointments Commission before the restoration of a devolved Assembly and Executive and before the devolution of justice. If we believe there are merits in the creation of a Judicial Appointments Commission, and Parliament, like the reviews, is persuaded of that, there are good reasons for proceeding now, in order to deal with the issues raised by the hon. Member for South Down (Mr. McGrady).

We do not have to draw only on abstract principles as we can consider what has happened in Scotland, which the Select Committee on the Lord Chancellor's Department examined in its second report of the

2002–03 Session entitled ''Judicial Appointments: lessons from the Scottish experience''. The Committee reported a general impression that the Judicial Appointments Board

''had settled down well, and was seen as successful even by those who had initial reservations about its creation or structure.''

I quote for the interest of the Committee; I do not draw a direct analogy. The report continues:

''It was also particularly welcomed by those who regarded the old system of appointment as too open to political influence,''—

that deals with the point made by the hon. Member for South Down—

''too secretive or too dominated by those practising in Edinburgh''.

Some comments relate particularly to the Scottish experience, but the general impression is that things have worked well. We, too, believe that what is proposed will work well, which is why we support the clause.

Question put and agreed to.

Clause 1 ordered to stand part of the Bill.

Schedule 1 agreed to.