New clause 1 - Removal or suspension from

Justice (Northern Ireland) Bill [Lords] – in a Public Bill Committee at 4:00 pm on 25th March 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''.'.—[Mr. Spellar.]

Brought up, and read the First time.

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

I beg to move, That the clause be read a Second time.

The 2002 Act set up a system for removing listed judicial office holders from office. The power to remove a judge is exercisable by the First and Deputy First Ministers acting jointly. A judge may be removed only if a tribunal convened under section 8 of the 2002 Act recommends that he be removed on the grounds of misbehaviour or inability to perform the functions of the office. That system will come into effect after the devolution of justice. By ''listed judicial office'', we mean anyone up to and including a High Court judge, although the system will apply only to High Court judges appointed after the devolution of justice.

The new clause removes the requirement for the Lord Chief Justice's agreement to the removal or suspension of a person from a listed judicial office. The Lord Chief Justice will, however, be consulted on the removal. The removal of a person from a listed judicial office will occur only on the recommendation of an independent tribunal. Such a tribunal will be chaired by a Lord of Appeal in Ordinary, the Lord Chief Justice or a Lord Justice of Appeal and will have another senior judicial member as well as a lay person. The Lord Chief Justice will also determine the procedure of the removal tribunals and select their judicial members.

Given the robust and careful arrangements that the 2002 Act already provides in respect of judicial removals, there is no need for the Lord Chief Justice to have a veto. Indeed, it is difficult to think of any circumstances in which the Lord Chief Justice would not agree with the recommendation of an independent and distinguished tribunal that a person be removed from judicial office. Accordingly, there is no reason why he should have the power that the 2002 Act provides.

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

If the Government believe that there is no need for the Lord Chief Justice to have a veto, why did they enact a veto in 2002? The Minister has a duty to tell us why that was done and why the Government have changed their mind. If the new clause had been introduced by Opposition Members, the Minister would tell us that the principle was settled in 2002 and we should not be reconsidering it, so I must put the same point to him. I do so in a genuine spirit of inquiry to find out why the Government gave the Lord Chief Justice a veto in 2002 and why they are withdrawing it.

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

We have reflected on that, and I am advancing some reasons why our further consideration has led to the belief that I have outlined. We have extensive mechanisms in place to deal with the highly unusual circumstance of a judge being removed. We then move to the other almost inconceivable situation of a Lord Chief Justice vetoing the decision of a tribunal that he played a considerable role in setting up—indeed, a committee of which he or one of the very senior judges has been part. We anticipate that the circumstances in which such tribunals are needed will seldom arise. A judge may be removed only if a tribunal has reported recommending that he be removed on the grounds of misbehaviour or inability to perform the functions of the office.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

Can the Minister help me? I was not in Committee when the 2002 Act went through Parliament. Why was the veto mechanism requiring the agreement of the Lord Chief Justice included?

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

I would have to refer to colleagues who dealt with that to find out why it was important. I have described the considerations that we examined and the almost inconceivable set of circumstances that would require such a veto.

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

In keeping the debate going, I hope that assistance might come to the Minister to enable him to explain the thinking behind the 2002 Act. I am in the same position as the hon. Member for Beaconsfield, not having been involved with that Act, so this is all news to me too. In view of the origins of this legislation, I want to put a specific and important question to the Minister: were any representations made to the Government on this change, and if so by whom? Where has this come from?

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

I will have to get back to the right hon. Gentleman as to any particular reasons, cases or considerations that may have given rise to this, but I have outlined the arguments that led us to believe that the 2002 Act is unnecessary in that regard, and therefore the reason for tabling the new clause.

Photo of Desmond Swayne Desmond Swayne Conservative, New Forest West

The Minister's principal argument is that it is inconceivable that the veto would be exercised. If that is genuinely inconceivable, is it worth tabling the new clause?

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

I do not think that it is necessarily good practice to retain redundant legislation or legislation that does not relate to real circumstances. I have described at length the procedures involved in the unlikely circumstance of there being a need to consider the removal of a judge from the bench, and therefore the already considerable involvement of the Lord Chief Justice in that process. We must then consider the question whether the Lord Chief Justice needs such a power in that process—the senior judiciary, including the Lord Chief Justice himself, is already deeply involved—and whether one person who is part of the process should have a veto over the rest of it.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I am sorry to press the Minister again, but the Government must know their business. It must be possible for him to be briefed as to why the 2002 Act gave that veto to the Lord Chief Justice. I find it extraordinary that in a debate that he knows was contentious in another place—he has had to re-table the new clause—he is unable to tell the Committee why the decision to put the veto in the legislation was made, so that we can understand whether the Government's arguments for removing it are valid. Frankly, it would be useful to know.

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office 4:15 pm, 25th March 2004

I have given a considerable number of arguments as to why the procedure as outlined in the 2002 Act is not required. The reason is the considerable involvement of the senior judiciary, including the Lord Chief Justice, throughout the procedure for the possible removal of a senior member of the bench. We considered that power and concluded that it is unnecessary. It was not part of the review and we felt therefore that it was not adding to the process. The new clause probably more properly reflects due process.

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

I wanted to give the Minister another opportunity to answer the last question that I put to him: has any representation been made to the Government about the matter? What is its genesis? Were any party or other Government involved in making suggestions to the Government about it?

I ask those questions simply out of the normal paranoia that we all have, a paranoia that is reinforced by one's knowledge of the origin of the legislation. I want the Minister to return to that matter. I would not ask the question if it were not for that paranoia, and if it were not for the unexplained matter of why the provision was put in and is now to be taken out.

If one were receiving the provisions de novo, one would note that the detail of the operation of the procedures for removal is not contained in the criminal justice review. The criminal justice review has only a few paragraphs in very general terms about the matter. The detailed procedure has been built by the Government from a few small germs in the criminal justice review. If the Government were proposing to introduce the procedure as they would now like it to

be, I would not feel moved to object to it. One's concern is simply why the provision was introduced and then removed. In the context in which we are operating, and knowing what has happened elsewhere, one suspects that something nasty happened somewhere in the woodshed on the way. I want transparency and openness from the Government about the matter.

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

We think that the provision that we are reinstating more closely reflects the recommendations of the criminal justice review, and does not impinge on the independence of the judiciary. We believe that there is a strong judicial input, and that therefore the clause stands on its own merits. We constantly receive advice from all sorts of quarters on different measures, and consider whether there is merit in those views. We believe that the proposed process is more substantial.

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

The Minister says that he constantly receives advice from all sorts of quarters. Did he receive advice on that matter? Why is he being so coy?

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

No, I have not had advice on that matter, but I am saying that the clause stands on its own merits.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I hope that the Minister will not take it personally, but that is one of the most unconvincing explanations and performances that I have heard in Committee for a long time. The clause is important, and was controversial during its passage through the House. He now seeks to change the mechanism for removal under the 2002 Act, and we are left completely in the dark as to why it has been thought necessary to make that change. The impression that he conveys is that he is either embarrassed or unable to tell the Committee about the original decision to introduce the clause and the current attempt to reinstate it.

I can see persuasive arguments to counter what the Minister has said, which I shall outline. The mechanism that we are setting up for disciplinary issues concerning the judiciary in Northern Ireland is a novelty—or was a novelty before the 2002 Act. It is well known that the system in England and Wales requires a resolution of both Houses of Parliament to remove members of the senior judiciary, which has historically taken place on the recommendation of the Lord Chancellor. The last time that that occurred was sometime in the early 19th century. However, I suspect that there may have been a threat to do so about 10 years ago, but that the person concerned left because it was suggested to him that such a resolution might follow if he did not consider his position.

Whatever the situation, one has to think carefully about the implications of moving away from that model. The Minister and I, and the rest of the Committee, will share the view that judicial independence and freedom from political pressure must be maintained. The interesting thing about the mechanism that has been proposed is that it does not involve the legislature. The Northern Ireland Assembly has no role whatever in the process. The link between the legislature and the judiciary in

Northern Ireland is treated for these purposes as non-existent. That may reflect the Government's assessment of the limitations of the Northern Ireland Assembly as a representative body or of the difficulties that the Assembly will face in view of the way in which it was set up. I do not know—the Minister has not condescended to tell us—but I can see that there could be difficulties. I do not want to add to his difficulties by suggesting that the Northern Ireland Assembly has to be the body that makes the decision.

The result of that is that the decision has been cast on the First Minister and his Deputy—that wonderful hybrid institution where two people with diametrically opposite political philosophies, in the current likelihood, have to operate together for the good of the citizens of Northern Ireland. In the 2002 Act, the Government clearly considered that that mechanism was not sufficient. They put in the extra mechanism of providing for a veto for the Lord Chief Justice.

The other feature of the 2002 Act is that the Lord Chief Justice in Northern Ireland becomes an important figure. He becomes the head of the judiciary once the devolved administration is set up. It seems to me—although the entire model strikes me, as a rather old-fashioned constitutionalist, as fairly bizarre—that if one is trying to provide checks and balances to ensure that there is not political pressure on the judiciary and that wrong decisions are not made by members of the Executive, the mechanism of providing for a veto by the Lord Chief Justice is sensible. The Lord Chief Justice is not God, because if we read further on in the 2002 Act a mechanism is available to remove the Lord Chief Justice from office if necessary. That mechanism extends very far and wide to involve the entire judicial establishment of the United Kingdom, or certainly of England and Wales, in that process. That is no bad thing. It is not as if the Lord Chief Justice is not answerable if he should act capriciously.

In such circumstances, the Lord Chief Justice's final say strikes me as eminently sensible. The Minister says that it is not necessary and that that situation could never happen. I do not know about that. I would certainly think that it is most unlikely that it will ever happen, and I hope that it is most unlikely that a tribunal ever has to be convened at all. However, just because it is unlikely, that does not mean that we should not provide a checking mechanism in a system that is untried and untested. As we know, there has been enormous difficulty in operating the Northern Ireland constitution. Otherwise, the right hon. Member for Upper Bann would have had a different career as First Minister. That is the reality of it.

I am afraid that I disagree with the Minister. In the absence of some cogent argument to persuade me otherwise, which has been lacking, I will resist the new clause, because I think that the arguments advanced in another place remain valid and that this is a sensible safety device to which I can see absolutely no downside.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

I agree in large measure with what the hon. Gentleman has said. The matter was first dealt with in the House of Lords, and the Government are seeking to reinstate the position. Frankly, I regret

that they feel that to be necessary. I do not see the need. There is no good reason for departing from the procedures followed on this side of the Irish sea, and the Government have not yet evinced one. I presume that the matter will be pressed to a vote, and I will support the hon. Member for Beaconsfield and his colleagues.

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

I reiterate that the key issue is whether any individual, however eminent and distinguished, should be able to exercise a veto in this regard, particularly when the Lord Chief Justice or other senior members of the judiciary have been involved in the process at an earlier stage and have therefore had a considerable influence on this important issue. The real question is then whether they should also have a veto within the system. On reflection, we decided that they should not. Accordingly, I seek to reinstate the clause that was removed in another place.

Question put, That the clause be read a Second time:—

The Committee divided: Ayes 10, Noes 6.

Division number 3 Adults Abused in Childhood — New clause 1 - Removal or suspension from

Aye: 10 MPs

No: 6 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly agreed to.

Clause read a Second time, and added to the Bill.