Justice (Northern Ireland) Bill

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Lady Hermon: Paragraph 6.104 of the review states:

    ''In the Northern Ireland context it is important to keep any hint of political input out of the appointments process.''

Will the hon. Member for Newry and Armagh address that point?

Mr. Mallon: I happen to have a less naive view of what is political--I suppose that comes with age. There is somehow a notion that when people don the gown and the wig they cease to be political. The implication of the h Lady's amendment is that the Lord Chancellor would be less political than the First Minister and Deputy First Minister. I do not believe that. I do not believe that anyone in this Room thinks that there is such a thing as an apolitical person, in that almost everything revolves around political beliefs.

Mr. Garnier: I know what the hon. Gentleman means by the word ''political'', which I think he is using with a small ''p''. All of us, whether or not we are interested in politics, are infected by that adjective to some extent, but to be fair to the Lord Chancellor—I rarely am—his appointments of the judiciary since he came to office in 1997 have been scrupulous. I do not say that only because he made me a part-time judge. His appointments to the High Court, the Court of

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Appeal and the House of Lords—and, I dare say, to the county and district courts—have been scrupulous. Neither the present Lord Chancellor nor any of his predecessors have allowed party politics to enter into the appointment process. I am reasonably sure that, were the Lord Chancellor to be given the role that the hon. Lady wants him to have in Northern Ireland, he would behave in exactly the same way. I may wish to develop other points later.

Mr. Mallon: By and large, I agree with the hon. and learned Gentleman. The First and Deputy First Ministers have been equally scrupulous in making appointments during the past three and a half years, since the founding of the Northern Ireland Assembly, and I have no doubt that that will continue. I am uncomfortable with the notion that if people from Northern Ireland, especially elected politicians, were to make appointments, there would be some devious plot behind their decisions—perhaps sectarian, or at least some scheme that does not exist elsewhere. That is wrong, and we should avoid such notions. I know that the hon. Lady was not implying that, but the imperatives that are built into the system are such that the scrupulousness that has been identified would be retained. I shall give an example.

Prior to the prorogation of the Northern Ireland Parliament, all our Attorney-Generals had been ex-members or serving members of the Ulster Unionist party who were elected to the Northern Ireland Parliament. I knew a number of them, and I would never suggest that they, when they became Attorney-General, acted in a less that scrupulous fashion. I do not altogether share the view that the Northern Irish people, through their representatives, cannot act in a fair way and cannot rise above the sectarianism that we suffer.

Lady Hermon: I have full confidence in the excellent team that we have in the First Minister and Deputy First Minister. I would not want my remarks to be interpreted as critical of them.

In the Scottish legal system—the Minister will correct me if I am wrong—recommendations for judicial appointments are made by the First Minister, and him alone. I am genuinely concerned that at some time in future, the First Minister and the Deputy First Minister, acting jointly—those are the words that concern me—may not agree on an appointment. Ours is such a small jurisdiction that we cannot afford to be without even one member of the High Court. It has only seven judges. I suggest that the Lord Chancellor could fill the gap.

Mr. Mallon: I thank the hon. Lady. She is, in effect, suggesting a rewriting of the Good Friday agreement. The reality is that the joint running of Northern Ireland by the Unionist and nationalist communities is at the heart of the agreement. I make no bones about it. We should not be surprised that that fact is reflected in every piece of Northern Ireland legislation, including the Northern Ireland Act 1998, the Police (Northern Ireland) Act 2000, the Bill—almost—and whatever future legislation crops up. Yes, it would be easier—God knows, it would be easier, I know that—

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if we did not need there to be agreement between the First and Deputy First Ministers. Without it, however, there would be no Assembly, no Administration and no hope that responsibility for appointing judges would ever return to the devolved Administration in the north of Ireland. That is the price that we must pay, and everything has a price.

Let me expand a little on the practicalities. It is not as if there is an unlimited number of people from among whom choices could be made, but choices are made every day of the week on other matters. The First Minister and Deputy First Minister make decisions about the budget, and decisions are made about the implementation bodies in the context of north-south business. Hon. Members will remember what a hot potato that was, although I say ''was'' because the arrangements are now working. I have no doubt that there will be moments of difficultly when the Bill is enacted, but I also have no doubt that they will be overcome through agreement and compromise, which is the only way in which the process can work. Compromise is not a pleasant word in Northern Ireland, but that is what is needed. Office holders and everyone involved in the Northern Ireland Assembly must recognise that the system will not work at any level unless there is a capacity for compromise. It would be much easier if that were not the case, but then the present arrangements would not exist.

Mr. Browne: Let me say at the outset that I shook my head at an inappropriate time earlier and perhaps put the hon. Member for Reigate off giving an accurate response to the question raised by the hon. Member for North Down about recommendations for appointments to the High Court and the tiers below it and to tribunals. I did so because I was considering the Lady's points about appointments above that level, to which the answer would be different because the First Minister and Deputy First Minister do not enjoy the same powers.

Mr. Blunt: I am most grateful to the Minister for making that clear. I am sure that the Government Whip heard that explanation and will withdraw the barracking that he gave me. I hope that he will also inform the hon. Member for Cleethorpes (Shona McIsaac) of it when she returns, which might encourage her to sing a little more quietly in future.

Mr. Browne: The hon. Gentleman is unduly sensitive this afternoon, and I do not remember any such barracking. He referred to himself yesterday as a hapless English gentleman, so what can one expect? It was his bad luck.

The amendments are interesting because, apart from anything else, they have given us an opportunity to hear from my hon. Friend the Member for Newry and Armagh. My hon. Friend has experience of the dilemmas that we may be posing for the First Minister and Deputy First Minister and of how those can be worked through.

The amendments would turn over to the Lord Chancellor the role that the First Minister and Deputy First Minister play in appointing senior judges. We discussed their role in the process extensively on

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Tuesday, and I shall deal specifically with the points that exercise the hon. Member for North Down. In the devolved scenario, we must give the First Minister and Deputy First Minister in Belfast the same trust that we presently extend to the Lord Chancellor in Westminster. As we heard from one of his appointees, that trust is being exercised scrupulously fairly.

The hon. Lady prefaced her remarks by a reference to paragraph 6.104 of the review. She is entitled to do that, and it is helpful for her to remind us of the underlying principle. The principle in that paragraph applies in the context of appointments to the commission. The hon. Lady will have read the review and will understand that the review's recommendations on the role of the First Minister and the Deputy First Minister in senior judicial appointments, to which the bulk of her amendments relate, is covered in the earlier paragraph 6.96.

4.15 pm

The review sets out explicitly the role of the First Minister and the Deputy First Minister in relation to senior judicial appointments, and its recommendations are reflected in the Bill. It also sets out their role in relation to the appointment of High Court judges and other tiers of the judiciary, down to tribunals. That is also set out in the Bill. The Bill's provisions are designed to reflect the recommendations of the review. The review sets out the principle of the involvement of the First Minister and the Deputy First Minister, but gives them ex officio roles. The Committee should accept that the one does not contradict the other.

The hon. Member for North Down specifically asked what would happen in relation to appointments from the High Court down were the First Minister and Deputy First Minister not to agree. The Bill's provisions are a reflection of the recommendations of the review in paragraph 6.106. They are clarified by the amendments that the hon. Member for Reigate sought to pray in aid, until he thought that I was saying he was wrong.

It is the Government's intention and hope that the sort of exercise that the hon. Member for Newry and Armagh talked about will be possible and that the First Minister and Deputy First Minister will be able to accept a recommendation from the Judicial Appointments Commission. However, if they are unable to, the matter will be referred back to the Judicial Appointments Commission and they are required to accept the commission's further recommendation.

The stalemate-busting provision sought by the hon. Member for North Down does exist. The stalemate that she anticipates, in which positions are left unfilled, will not occur. She will not find the answers to her concerns in the Bill. The Bill's provisions merely imply that that is the case. However, if the Committee agrees to amendments that I will put before it shortly, it will be made explicit in the Bill. The hon. Member for North Down is right to ask the question and the hon. Member for Reigate is correct to say that the Committee will shortly consider amendments that deal with it.

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The hon. Lady's amendments in relation to the First and Deputy First Ministers' role in the process for the appointment of the most senior judiciary are designed to replace them with the Lord Chancellor. We should not overstate the roles of the First and Deputy First Minister. They are important, but not decisive. In relation to the most senior judges, their role is to be consulted on the recommendations to be made by the Prime Minister. The First Minister in Scotland already plays a key and seminal role in senior judicial appointments there, so the Bill's provisions are a reflection in Northern Ireland circumstances of a position that already exists in Scotland.

I have already dealt with the hon. Lady's concerns in relation to the Bill's provisions on the lower tiers of appointment, judicial and otherwise. I trust that she will feel able to withdraw her amendments, having heard my remarks and accepting that I will move the amendments that are tabled in my name later.

Amendment No. 11 proposes that the First Minister and Deputy First Minister clear the procedures for making senior judicial appointments with the Assembly. The hon. Member for Reigate will know that, in my view, the First Minister and Deputy First Minister hold their roles ex officio, not for political reasons. In Westminster terms, it would be unusual for an ex officio position to require the level of scrutiny suggested by the hon. Gentleman. I see no reason to subject a devolved institution to that level of scrutiny if it would not be an acceptable level of scrutiny in the context of Westminster. There is sufficient co-operation with the independent organisation, in the form of the Judicial Appointments Commission, in the drafting of the procedures to ensure appropriate scrutiny. It would be inappropriate to make that process subject to the scrutiny of the Assembly.

Amendment No. 95 would remove the duty to consult the Lord Chief Justice in making senior judicial appointments. My attitude is simple; the Lord Chief Justice is bound to have a valuable and important insight into the candidates who come forward for such appointments. I cannot think of any circumstances in which his opinion would not be sought or in which he would not be consulted about senior judicial appointments, given that he is the most senior judge. In the interests of transparency and openness, we should have that in the Bill and state that it is part of the process, rather than simply taking soundings, which is apparently what happens at the moment. That is why I resist that amendment.

If the hon. Members for North Down and for Reigate are satisfied with that explanation, they may not press their amendments to a Division. My officials inform me, incidentally, that the First Minister in Scotland has a more significant role than the one played by the First Minister and Deputy First Minister in Northern Ireland. However, perhaps we should discuss that on another day.

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Prepared 31 January 2002