Clause 4 - Appointment of Lord Chief Justice

Justice (Northern Ireland) Bill [Lords] – in a Public Bill Committee at 3:15 pm on 25th March 2004.

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Photo of Dominic Grieve Dominic Grieve Shadow Attorney General 3:15 pm, 25th March 2004

I beg to move amendment No. 14, in

clause 4, page 3, line 5, at end insert

'and—

(c) consult the Lord Chancellor.'.

Photo of Joe Benton Joe Benton Labour, Bootle

With this it will be convenient to discuss the following amendments: No. 15, in

clause 4, page 3, line 7, after 'consult', insert 'the Lord Chancellor and'.

No. 16, in

clause 4, page 3, line 11, after 'advice', insert

'as to the substance of their recommendation and'.

No. 17, in

clause 4, page 3, line 21, at end insert—

'(7) Any recommendation made to the Prime Minister under this section shall contain no fewer than 2 names.'.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

This is an important clause. It provides that there is system of consultation and recommendation for senior judicial appointments involving the First Minister and Deputy First Minister. That form of consultation is laid down in a statutory form. Our amendments require consultation with the Lord Chancellor at which time the First and Deputy First Minister might make any such recommendation. There must be good grounds for involving the Lord Chancellor in that process.

Looking back to our debate this morning I can see that if he ever disappears and is replaced by the Secretary of State for Constitutional Affairs, the argument might be different, but for the moment there is a Lord Chancellor. He is the head of the judiciary, and that also applies to Northern Ireland, where he has a role. In those circumstances, it strikes me as rather odd that he is excluded from the process as laid down in the clause. Indeed, I cannot but think that one reason why he was excluded is that when the Bill was originally drafted, the Lord Chancellor did not feature, so his alter ego and eventual replacement was named instead. As we still have a Lord Chancellor, he should be consulted, and I will be interested to hear the Minister's response on why he was either removed from the process or never included in the first place.

On the role of the Judicial Appointments Commission, I confess that I find subsection (5) odd and hard to follow. It is worth reading out:

''The Northern Ireland Judicial Appointments Commission shall give to the First Minister and deputy First Minister advice as to the procedure which, whenever they are required by the Prime Minister

to make any recommendation under subsection (3)(a), they should adopt for formulating that recommendation.''

What does that mean? If the advice is only procedural, will the commission be allowed to say only that the First Minister and the Deputy First Minister should sit down in a room one afternoon, decide whom they want and then send the recommendation off to the Prime Minister? If the advice is on anything more, it will concern substance rather than just procedure.

I would be mystified if there was no advisory role for the commission on the substance of who should be appointed. As one of the Bill's purposes is to remove the taint of political or sectarian bias, why should the commission not suggest to the First Minister and the Deputy First Minister the two or three people whom they should consider? After all, the commission will have the expertise, which the First Minister and Deputy First Minister are unlikely to have. That is not because of any specific failings, but unless they happen to be lawyers or are intimate with the legal profession, they may have great difficulty in working out the best people to appoint. Furthermore, one would have thought that if they were doing their job properly, they would informally consult the Judicial Appointments Commission anyway.

For that reason, the Minister should explain the role that the Judicial Appointments Commission will have under subsection (5). In doing that, he should bear it in mind that the commission will be well placed to provide the advice that the First Minister and Deputy First Minister will need in proposing appointments.

Finally, and perhaps most importantly, there is the question of what is being forwarded to the Prime Minister. The procedure envisages that one name will go to the Prime Minister for approval. I presume that the Prime Minister may reject the name and compel the First Minister and Deputy First Minister to reconsider the appointment. Is that sensible?

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change) 3:30 pm, 25th March 2004

I am intrigued by the hon. Gentleman's comment that one name will go forward. My reading of new subsection (3)(a) is that it does not necessarily envisage a single name. According to it, the Prime Minister shall

''require the First Minister and deputy First Minister, acting jointly, to make a recommendation to him concerning the appointment in such form as the Prime Minister may specify''.

If the Prime Minister specified that he wanted two names, he would get two names.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The hon. Gentleman may be right, but equally the procedure could result in only one name going forward.

To pick up on the hon. Gentleman's important point, another oddity that creeps into the system is that the Prime Minister is given the power to make the specification. That raises an interesting question: what are the First Minister and Deputy First Minister actually doing? Either they are being given an important role in the procedure, which is what I expected that the Government wanted, or they are not. Under the new subsection, the specification could be in such terms that only one name already known to the Prime Minister could result from the process, but I do

not think that the parliamentary draftsmen intended that.

In Northern Ireland legislation, drafting is often opaque: I remember the first time I considered the Bill that became the Public Processions (Northern Ireland) Act 1998, which referred to the playing of ''musical and other instruments''; when I inquired what an ''other instrument'' in a band was, nobody seemed to know, so it was deleted. I am always wary of the opacity that creeps in, and of course the Good Friday agreement is one of the most opaque documents known to man. It is probably totally deliberate here, but it is better to be more specific. If the reality is that the Prime Minister will always ask for two names, surely we should say that two names should go forward. If not, why have this funny bit in paragraph (a), to which the hon. Gentleman draws attention? The purpose of being in Committee is not to take dogmatic standpoints but to probe the Government and find out what is going on, so can the Minister enlighten us? It would be much more sensible if two names were prescribed: it is a commonly accepted practice in our constitution. Archbishops of Canterbury are appointed on the recommendation of two names to the Prime Minister, so the practice has been around a long time.

If we end up with one name going to the Prime Minister, the danger is that he may reject the name; the other danger, as highlighted by the hon. Member for Orkney and Shetland, is that the system will be rigged from the outset and the public will say that the First Minister and Deputy First Minister had no discretion in the matter. Neither solution is desirable, so I hope that the Minister will respond positively.

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

The most significant changes in clause 4 are the proposed changes to section 12(3) of the Judicature (Northern Ireland) Act 1978, as amended by the 2002 Act. The provisions in new subsections (5) and (6) to the 1978 Act are largely the same as those in the 2002 Act, but there is a significant change in new subsection (3) in comparison with section 4 of the 2002 Act. Section 4 refers to the Prime Minister making a recommendation to Her Majesty in these terms:

''The power of the Prime Minister to make recommendations . . . is exercisable only after consultation with

(a) the First Minster, the deputy First Minister; and

(b) the Lord Chief Justice''.

However, the Bill states:

''Before making any recommendations to Her Majesty concerning an appointment . . . the Prime Minister shall

(a) require the First Minister and deputy First Minister, acting jointly, to make a recommendation to him concerning the appointment''.

That is where the change occurs.

The other provisions concern the procedure to be adopted by the First Minister and Deputy First Minister in making an appointment and the taking of advice from the Judicial Appointments Commission on that procedure. Under the 2002 Act, the Prime Minister made the recommendation to Her Majesty, but before doing so, he consulted the First Minister and the Deputy First Minister. That consultation was clearly envisaged as substantial—hence the procedure

set out in section 4(3). Under this Bill, the First Minister and Deputy First Minister will make a recommendation to the Prime Minister on who is to be appointed, which he will then consider. As the hon. Member for Beaconsfield says, presumably that means that the Prime Minister can decide not to recommend that person to Her Majesty for appointment. We have therefore moved from a situation in which the appointment is decided by the Prime Minister after consultation with others to one in which those others suggest a name to the Prime Minister, who has discretion to decide whether to send it to Her Majesty for appointment. That is a significant shift with regard to the appointments of a Lord Chief Justice and Lords Justices of Appeal.

This morning, I made some gloomy comments about the prospect for the restoration of devolution in Northern Ireland. I can refer to myself only as someone who was once First Minister; I cannot even say the once and future First Minister, because the future might be a long way off. However, I would be very uncomfortable with the proposal. It is undesirable for the selection to be made by the First and Deputy First Ministers, subject to a veto by the Prime Minister, but that is essentially what we are talking about.

At present, under the 2002 Act, the selection will be made by the Prime Minister, subject to consultation with the First and Deputy First Ministers, and we are comfortable enough with that. However, for the selection to be made by the First and Deputy First Ministers subject to a veto exercised by the Prime Minister is a huge shift for which no explanation has been given. It is important that it should be explained, especially in the light of all that has been said about excluding political influence from appointments and with regard to other appointments made by the Judicial Appointments Commission, which comes in simply to advise the First and Deputy First Ministers on the procedure they are to follow in making a recommendation.

Making a recommendation is making a selection, so if I understand it correctly, the power to select means that with regard to senior appointments, the selection is done by the First and Deputy First Ministers after they have been advised on the procedure by the Judicial Appointments Commission, and it is subject to a veto by the Prime Minister. Is that the case? If so, why the enormous shift from the 2002 Act to a procedure for very senior appointments that is so different with regard to the Judicial Appointments Commission from that for lesser judicial appointments? I should be happy to have the Minister's guidance.

Photo of Eddie McGrady Eddie McGrady Social Democratic and Labour Party, South Down

Senior judicial appointments are the subject of a firm commitment by the Government, which is not reflected in the Bill or the amendments. The Government's summary of commitments in respect of new criminal justice legislation, published in March 2003, states:

''In respect of appointments of Lord Chief Justice and the Lords Justices of Appeal, the First Minister and the Deputy First Minister acting jointly will make recommendations to the Prime Minister, who in turn will recommend appointments on that basis.''

That basis is the submissions made by the First and Deputy First Ministers. That undertaking was given to implement recommendation 75 of the criminal justice review so that the Deputy First Minister would have effective control of senior judicial appointments upon devolution of the justice powers, rather than the Prime Minister.

The Bill as drafted merely obliges the Prime Minister to consider the recommendations of the First and Deputy First Ministers; he is not obliged to make those recommendations to the Queen; and it is he rather than the First and Deputy First Ministers who has effective control of the appointments. It further increases the Prime Minister's control, as he is allowed to specify the form of the recommendation to be submitted by the First Minister and the Deputy First Minister. For instance, he can dictate the number of nominations in the review, allowing him to decide from any number on a list of whatever size. The procedure for making recommendations must also be agreed by the First and Deputy First Ministers with the Prime Minister, which again contradicts the undertaking given by the Government in their summary of commitments in March 2003.

The role of the Prime Minister should be confined to acting on the basis of the recommendations of the First and Deputy First Ministers, as agreed by the Government. He should not be able to overrule the recommendations made to him, to dictate the form of the recommendations or to exercise a veto over the procedure to be followed by the First and Deputy First Ministers when making the recommendations.

It should always be remembered that, under the Northern Ireland Act 1998, the office of First and Deputy First Minister is a joint office, and not two distinct offices. I accept that the First and Deputy First Ministers need guidance on making recommendations and should seek the advice of the Judicial Appointments Commission on what procedures to follow. If they depart from the commission's recommendations, they should have to advise publicly why they have done so.

What we have before us, however, is a derogation of the clear written commitments that the Government entered into last year as a consequence of the negotiations at Hillsborough. Therefore, although I will not oppose the clause, I certainly want to make known my reservations about the fact that the Government are not fulfilling a solemn undertaking given in a written document.

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

I say to my hon. Friend the Member for South Down that the clause gives the First and Deputy First Ministers a central role in the appointment of the Lord Chief Justice and the Lords Justices of Appeal. It is difficult to conceive of the Prime Minister not basing his recommendation to Her Majesty on their recommendation to him. Equally, we do not believe that the review envisaged the Prime Minister as merely a post box. Therefore, I think that we have got the balance right.

Opposition Members asked about the genesis of the provisions. The clause accurately reflects the recommendations of the criminal justice review, which states that

''responsibility for making recommendations to Her Majesty The Queen would lie with the Prime Minister, as now, but on the basis of recommendations from the First Minister and Deputy First Minister.''

The review went on to state that

''the First Minister and Deputy First Minister should consult with the Judicial Appointments Commission over the procedure to be adopted''.

We continue to believe that the Judicial Appointments Commission will be best placed to advise the First and Deputy First Ministers on the procedure to adopt for formulating a recommendation to the Prime Minister, while the clause gives the Prime Minister flexibility as to the number of names he might require from the First and Deputy First Ministers. We therefore feel that we are implementing the criminal justice review and that the procedure will be an effective way of dealing with an extremely important appointment.

I shall now deal with the amendments in turn. Amendment No. 14 would require the Prime Minister to consult the Lord Chancellor before making recommendations, and amendment No. 15 would require the First and Deputy First Ministers to consult the Lord Chancellor before making a recommendation to the Prime Minister. It is not necessary for both the Prime Minister and the Lord Chancellor to be involved in this already robust process. The clause will come into effect only upon devolution of justice. After devolution of justice, the Lord Chief Justice, not the Lord Chancellor, will be the head of the judiciary in Northern Ireland. It is therefore not necessary to make statutory provision for consultation with the Lord Chancellor. There is nothing to prevent either the Prime Minister or the First Minister and Deputy First Minister from consulting the Lord Chancellor if they so wish. On that basis, I ask hon. Members not to press amendments Nos. 14 and 15.

Amendment No. 16 would ensure that the Judicial Appointments Commission, as well as advising the First Minister and Deputy First Minister on the procedure to adopt when making senior judicial appointments, would advise on the substance of the recommendations. Recommendation 85 of the criminal justice review states that

''the First Minister and Deputy First Minister should consult with the Judicial Appointments Commission over the procedure to be adopted''.

It did not recommend that the commission should provide advice on the substance of recommendations to the Prime Minister. That would give the commission a role in individual appointments to senior judicial offices, which was never intended.

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

Would the Judicial Appointments Commission have any role in the appointment of High Court judges? Such appointments would be of an individual nature.

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

The review was clear that the commission's direct involvement in appointments should cease at the level of High Court judges. We

recognise that there is a difference with regard to the two appointments in question, not least because of the small number of people involved.

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

The Minister is bringing in a commission with the objective—I doubt that it will be achieved—of ensuring that there is no political influence in appointments up to the level of High Court judge. Then it stops and more senior appointments are to be explicitly political.

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

The 2002 Act also envisages those arrangements, as does the review. It therefore ensures that the procedures for senior judicial appointments are based on a recommendation from the First Minister and the Deputy First Minister to the Prime Minister. That is clearly the position that is outlined in legislation and also in the review. That is why we are following it through.

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

The point of my earlier intervention was to ask the Minister not whether he was following the instructions that he had received, but whether he was content with a situation in which the objective—again, I do not think that it will be achieved in practice—is to exclude political considerations from minor appointments up to High Court level, while most senior appointments are to be made by an explicitly political process. Is he content with that?

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

We have such appointments in many cases, including that of the Archbishop of Canterbury. We therefore think that such procedure is the right way of handling the issue. That is the basis of the work that we have undertaken. It has been agreed by the House in previous legislation, pretty exhaustively covered by the review and crawled over by many of those who have debated it. We think that that is the appropriate way of handling the issue, and that is why we commend the clause to the Committee and ask hon. Members not to press their amendments.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

This has been an illuminating debate. I do not have the time to follow Northern Ireland affairs as closely as I would like, and I was not party to the Committee stage of the 2002 Act. I appreciate the existence of links between the two measures, but some of the subtle nuances between them have not always reached me. I was therefore interested to hear the contributions of the right hon. Member for Upper Bann and the hon. Member for South Down about the background to the proposal before us. The latter described the agreement that he understood existed over the role of the First Minister and his deputy in the appointment of the senior judiciary. It appears that he has been misled and that the Government are in fact implementing a markedly different proposal, although I accept from what the Minister said that it tallies fairly closely with what the review suggested.

My earlier comment that there was something opaque about the provision was spot on. On the one hand, the Government have given assurances about the increased role of the First Minister and his deputy, but on the other, the detailed drafting has included mechanisms to neutralise the measure's impact, possibly because of anxieties about whether it could be implemented in the unfortunately continuing environment of tension in Northern Ireland. That

explains the bizarre wording of new subsection (3)(a), which was rightly highlighted by the hon. Member for Orkney and Shetland.

I am mindful of the Minister's difficulties and the comment of the right hon. Member for Upper Bann that it might have been better to leave the process as it was, with the Prime Minister continuing to take the decision.

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

The legislation already passed by Parliament envisages a considerable role for the First Minister and Deputy First Minister. It is right to point out that there have been some changes to the procedure, but the crucial and significant involvement already exists. The principle has been established, so the hon. Gentleman should not follow the right hon. Member for Upper Bann down the path of not wanting political figures to be involved in the appointments.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I disagree. There is political involvement in the appointments process, as there is in all judicial appointments processes. I do not want to be diverted too much, but I point out the great irony in the fact that although the Constitutional Reform Bill talks about the separation of powers at the United Kingdom, England and Wales levels, there is actually no such thing. Indeed, such separation is unachievable because such decisions have to be political, although preferably taken on non-political grounds. That is why even the Constitutional Reform Bill includes a provision ensuring that the Prime Minister and Secretary of State for Constitutional Affairs—or Lord Chancellor, as the post is now—will ultimately have to take certain decisions in the appointment of our higher judiciary. I do not dispute that fact, but I am irritated by the suggestion that a new world is opened up by following the Constitutional Reform Bill road. It is not; there is inevitably still a degree of political involvement.

The new system under the 2002 Act envisaged that the Prime Minister had to consult the First Minister and his deputy. I accept that that was a major departure from previous practice, but it is different from asking the First Minister and his deputy to advise the Prime Minister and give him a recommendation. That is the significant shift in this Bill. However, whether it was done at the last minute or not, the Government have had cold feet about it and have introduced a mechanism by which the Prime Minister still exercises substantial control over the process.

I do not know whether that is desirable. It may be inevitable, although I may question why we are going down such a road at all, especially if it ultimately ends up with a fudge. However, if there are anxieties about the ability of the First Minister and his deputy to come up with an acceptable recommendation, it would be much better to call a spade a spade and say that they have to come up with two names. That proposal was debated in the Lords, where it was suggested that three names should be put forward.

Of all the amendments that we have tabled, amendment No. 17 is the most important, and I intend to press it to a Division. It would be much better to have two names going from the First Minister

and his deputy to the Prime Minister. If we agreed to the amendment, it would then be perfectly possible to reword new subsection (3)(a) so that the opaque part of it was removed. I apologise to the hon. Member for South Down for not taking up that point earlier. I share his disquiet about the fact that new paragraph (a) has apparently given on one hand and passed on a responsibility, but is so worded that it allows the Prime Minister to fix the entire procedure. That is the recommendation that I make to the Minister.

For the moment, I wish to press amendment No. 17 to a vote, but I am sympathetic to what was said by the hon. Member for South Down about new paragraph (a). One would need to return to the assurances that he understood were being given. I think that we have ended up with a sleight of hand by which the appearance is given of responsibility in a devolved Administration, but the reality is otherwise.

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party 4:00 pm, 25th March 2004

To ensure that there is no misunderstanding, the hon. Gentleman is referring to assurances that may have been given to the hon. Member for South Down. Indeed, the latter made reference to an agreement. Let us be clear about that. The arrangements to which the hon. Member for South Down refers are called the joint declaration. This particular aspect of it was not subject to the agreement of any Unionist, nor was any Unionist consulted on the matter.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I did fully appreciate that that was the reality. I was quite sure that the right hon. Gentleman would have told me if he had been party to that particular discussion. I inferred that the hon. Member for South Down was left with such an impression as a result of the discussions. All I can say is that his impression, if it is correct—I have no reason to doubt his good faith in saying that that was the impression he got—is at variance with the strict wording of the clause. The right hon. Member for Upper Bann may say that it would be much better to leave things as they are, and I have some sympathy with that.

If the Government are determined to go down this road, it would make much more logical sense for two names to go forward with a clarification that beyond that point the Prime Minister does not have a power to rig the process, rather than leave a situation where there is a danger of people saying that they were duped into understanding that the process would be carried out in a particular way. I cannot see how that is helpful to any aspect of achieving devolved government or the peace process in Northern Ireland. That is my personal view, but I do not think that the hon. Member for South Down disagrees with me, and I am not sure whether the right hon. Member for Upper Bann would disagree with me.

I understand the right hon. Gentleman's point that he would prefer the existing system to remain. We made it clear in the Lords that we would prefer that, too. As I am trying to help the Government, I hope that the Minister will accept my ideas within the constructive framework in which they have been

introduced. To help him along the way, I would like to put amendment No. 17 to the vote, but first I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: No. 17, in

clause 4, page 3, line 21, at end insert—

'(7) Any recommendation made to the Prime Minister under this section shall contain no fewer than 2 names.'.—[Mr. Grieve.]

Question put, That the amendment be made:—

The Committee divided: Ayes 5, Noes 11.

Division number 2 Adults Abused in Childhood — Clause 4 - Appointment of Lord Chief Justice

Aye: 5 MPs

No: 11 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Clause 4 ordered to stand part of the Bill.