Mr. Blunt: I do not accept the Minister's argument in the terms in which he put it. What about Members of the European Parliament or the Council of Europe? They would equally have a role to play. Members of the European Parliament might perhaps be disqualified under schedule 1 to the House of Commons Disqualification Act 1975. I do not know. However, Members of the European Parliament from other countries, such as the Irish Republic, would not be disqualified under those provisions. I simply ask for consistency. If we have a level of devolved Administration, there should be an appropriate cut-off point. I think that the appropriate point is the Legislative Assembly, which has a direct relationship to the devolved system, not to the House of Commons. It is a matter of judgment.
Mr. Turner: Will my hon. Friend give way?
Mr. Blunt: I shall not give way, if my hon. Friend will forgive me, because I do not want to press the point. The issue merits debate, and I regret that we do not have time to debate it further. It is important in relation to the responsibilities of Members of the
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House of Commons within the devolved structure of the United Kingdom, and important philosophical points should come from debating it. However, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 2 agreed to.
Appointment to most senior judicial offices
Lady Hermon: I beg to move amendment No. 94, in page 3, line 19, leave out
'First Minister and deputy First Minister;'
and insert 'Lord Chancellor'.
The Chairman: With this it will be convenient to take the following amendments: No. 95, in page 3, leave out lines 20 to 22.
No. 10, in page 3, leave out lines 23 to 27.
No. 96, in page 3, line 24, leave out
'First Minister and deputy First Minister'
and insert 'Lord Chancellor'.
No. 97, in line 26, leave out 'they' and insert ', the Lord Chancellor'.
No. 98, in page 3, line 26, leave out 'their' and insert 'his'.
No. 11, in line 27, after 'him', insert
'subject to the approval of the Assembly.'.
No. 12, in page 3, leave out lines 28 to 33.
No. 99, in page 3, line 28, leave out from 'the' to 'determine' in line 30 and insert 'Lord Chancellor shall'.
No. 121, in page 3, line 30, leave out 'they are' and insert 'he is'.
No. 122, in page 3, line 31, leave out '(3)(a) they are' and insert '(3) he is'.
No. 123, in page 3, line 32, leave out 'their' and insert 'his'.
No. 124, in page 3, line 32, leave out 'they are' and insert 'he is'.
No. 125, in page 3, line 33, leave out 'they' and insert 'he'.
No. 126, in page 3, line 35, leave out from second 'the' to 'appoint' in line 36 and insert 'Lord Chancellor'.
Lady Hermon: Hon. Members will be pleased to know that I intend to be brief. All the amendments that I have tabled to clause 4 relate to the appointment of what are referred to in its title as the most senior judicial offices. Those are the most senior judicial offices in Northern Ireland. First, let us consider the appointment of the Lord Chief Justice and the Lord Justices of Appeal. The procedure under the clause is that the Prime Minister, before making a recommendation to Her Majesty, must consult the First Minister and Deputy First Minister. [Interruption.] I hear the Minister sigh.
Mr. Browne: No, I am not sighing.
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Lady Hermon: A sentence in paragraph 6.104 of the review of the criminal justice system addresses the point and struck me as of fundamental importance. It states:
''In the Northern Ireland context it is important to keep any hint of political input out of the appointments process''.
It therefore strikes me as absolutely at variance with that sentence for two MLAs to be given such enormous powers over such senior appointments. Amendments Nos. 94 and 95 would therefore replace the roles of the First Minister and Deputy First Minister with that of the Lord Chancellor. Amendments Nos. 96 to 98 are paving amendments, as are amendments Nos. 121 to 125.
I do not have a specific axe to grind about High Court judges but, as I made clear on Tuesday, I regret that they are not treated in the same manner as the most senior judicial offices. New section 12A of the Judicature (Northern Ireland) Act 1978, which is proposed in the clause, states that in appointing a High Court judge the First Minister and Deputy First Ministertwo politicians, two MLAsmust act jointly. The words ''acting jointly'' cause me considerable concern, as they mean that each has a veto on such an appointment.
At the end of our debates on Tuesday, I specifically intervened on the Minister to ask what would happen if the First Minister and Deputy First Minister could not agree on an appointment. The Minister replied:
''Our stock answer would be that we are not planning for failure''.[Official Report, Standing Committee F, 29 January 2002; c. 68.]
That does not address the nature of the problem.
Mr. Browne: The hon. Lady will be aware that there is a disadvantage in reading the stark words. Those who were not here when I said that will not know that I went on to give her a full answer that was not the stock answer. Perhaps I have lost my ability to be ironic, but that is what I was trying to be.
Lady Hermon: I apologise if I misrepresented the Minister. Those were his words, and he went on to identify what would happen under devolution.
On rereading the Belfast agreementthe Good Friday agreement, which was the foundation for the reviewI was intrigued by the fact that although it does not ask time and again for the First Minister and Deputy First Minister to act jointly, that has been provided for in subsequent legislation, especially the Bill.
Mr. Mallon: I am interested in what the hon. Lady says. In what part of the Northern Ireland Act 1998 is the requirement to act jointly not included, in terms of functions? In what subsequent legislation that involves the functions of the First and Deputy First Ministers does that not apply?
Lady Hermon: I have to cast my mind back to the Belfast agreement. My recollection is that on key questions the First and Deputy First Ministers were to act jointly, and that could be added to through the
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Assembly. However, I undertake to clarify my recollection of the Belfast agreement, rather than the subsequent legislation.
Mr. Mallon: I shall be interested in the hon. Lady's findings. There are 18 references to the functions of the First and Deputy First Ministers in the Bill, all of which are accompanied by ''acting jointly''. I contend that when she re-examines the previous legislation, she will find that it is exactly the same in that respect.
Lady Hermon: I thank the hon. Gentleman for developing the argument. If there are 18 provisions in the Bill under which the First and Deputy First Ministers must act jointly before an appointment occurs or something else happens, what will happen in the event of those two politicians failing to agree on, for example, the appointment of a High Court judge? We are considering seven appointments to key positions in the small jurisdiction of Northern Ireland. I simply wish to have the combined role of the First and Deputy First Ministers replaced by that of the Lord Chancellor. It is eminently sensible not to have one politician vetoing the appointment of a High Court judge, and that is what I want the Minister to address. It is not helpful to say time and again that they must act jointly.
Mr. Blunt: Since I aspire to the Minister's post, perhaps I can try to answer the hon. Lady's question. I think that it is addressed by Government amendment No. 70. If the First and Deputy First Ministers fail to come to a conclusion, they must make the appointment[Interruption.] I see that the Minister is shaking his head. I must have read that wrongly. I shall leave that issue and deal with the amendments that are tabled in my name, which relate to clauses 4 and 5.
These amendments are not a significant matter of principle, but I invite the Government to choose between amendments Nos. 10, 11 and 12. Amendments Nos. 10 and 12 would strike out new section 12 (4) and (5) of the 1978 Act so as to remove the duty on the First Minister and the Deputy First Minister to determine the procedure, as yet unknown, that they are to adopt for the consultation process. The appointment will be made by the Queen on the advice of the Prime Minister, so it is far too prescriptive for hon. Members of this House to place a duty on the Prime Minister to consult and then to tell the Judicial Appointments Commission to advise the consultees of the Prime Minister on the procedure to adopt. It is over the top. I am sure that the Government's intention is for that to be a real part of the process, and for it to be as transparent as possible. I assume that that is why it appears in the Bill. The process should achieve transparency by being agreed by the Assembly.
That is the purpose of amendment No. 11, which would make the process subject to the approval of the Assembly, thereby bringing within the ambit of the Assembly the decision on how the process of consultation between the First Minister, Deputy First Minister and the Judicial Appointments Commission on the most important judicial appointments in Northern Ireland should take place. That does not
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involve the Assembly in the consultation process, but it is legitimate for it, as the devolved authority in Northern Ireland, to have a say in the procedure, if that procedure is to be laid down in the Bill. I would be happy for the procedure not to be included in the Bill because I believe that that is too prescriptive, but if it is included, the Assembly should have some role in establishing it.
Mr. Mallon: I shall make two points, and I shall start by dealing with the point made by the hon. Member for Reigate. Obviously, if and when devolution of these powers takes place, it will become a matter for Assembly input. One would expect that the Department of Justice, as it would then be, would have the same sort of scrutinising committee that other Departments have. That does not fully answer the question posed by the hon. Gentleman, in the sense that the functions of the First Minister and Deputy First Minister are not liable to scrutiny under the Bill. There is an office that deals with the roles of First Minister and Deputy First Minister, which is working well. However, I believe that there is the capacity to ensure that the Assembly is properly acquainted with these matters.
We should not forget that the power vested in the First Minister and Deputy First Minister by the Bill and other legislation is not vested in them as persons but as representatives of the political parties that have been endorsed by the Assembly on a cross-community basis. I sometimes get the impression that people think that the First Minister and Deputy First Minister have absolute rights to do anything at any time. That is far from the truth because there are many constraints on them.