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Mr. Trimble: 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.
Mr. Grieve: 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
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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Amendment, by leave, withdrawn.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
Question put, That the amendment be made:—
The Committee divided: Ayes 5, Noes 11.
Division No. 2]
AYES
Grieve, Mr. Dominic
Hunter, Mr. Andrew
Swayne, Mr. Desmond
Swire, Mr. Hugo
Trimble, Mr. David
NOES
Barnes, Mr. Harry
Casale, Roger
Clarke, Mr. Tony
Coaker, Mr. Vernon
Harris, Mr. Tom
Hepburn, Mr. Stephen
Lucas, Ian
Palmer, Dr. Nick
Spellar, Mr. John
Taylor, Ms Dari
Thomas, Gareth
Question accordingly negatived.
Clause 4 ordered to stand part of the Bill.
New clause 1
Removal or suspension from
listed judicial offices
'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.
Mr. Spellar: 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.
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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.
Mr. Trimble: 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.
Mr. Spellar: 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.
Mr. Grieve: 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?
Mr. Spellar: 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.
Mr. Trimble: 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?
Mr. Spellar: 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.
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Mr. Swayne: 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?
Mr. Spellar: 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.
Mr. Grieve: 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.
Mr. Spellar: 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.
4.15 pm
Mr. Trimble: 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
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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.
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