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Lord Mayhew of Twysden: There can be very few issues more important to the rule of law than those surrounding the circumstances in which a senior judge can be removed. As has already been pointed out, that has been recognised in our constitutional arrangements for 400 years or more. To their credit, the Government

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patently recognised that in the 2002 Act. They stipulated not only that the recommendation of a tribunal to dismiss a judge and for a judge to be dismissed should be a matter of consultation with the Lord Chief Justice of Northern Ireland; they also stipulated that it should not take place save with his agreement.

In these days of transparent and open government, it would be helpful to know on what basis of consultation with the then Lord Chief Justice that provision was included in that Bill, which was subsequently enacted. Was the noble and learned Lord, Lord Carswell—then, Sir Robert Carswell—consulted and may the Committee know what his view about that was? Presumably, he concurred with the provision that his consent should be obtained. I believe that the Government argue that the Criminal Justice Review did not specify that that consent should be obtained. However, one assumes that it was thought necessary, and I should like to know why in 2002 it was felt that it should be obtained.

The noble Baroness, Lady Amos, was kind enough to write to me—for which I am very grateful—following a speech that I made at Second Reading when I alluded to this matter. She was kind enough to say that the noble and learned Lord, Lord Carswell, the then Lord Chief Justice, had been consulted about this amendment, which simply requires consultation. She did not tell me what his view had been. It would be helpful to know whether his view has been obtained. She also went on to say that Sir Brian Kerr, his successor as Lord Chief Justice, was to be consulted, and I expect that, by now, he has been. Therefore, I should like to have a good deal more light thrown upon this matter. It seems very strange that the Government now consider it necessary to dilute the requirement for the consent of the Lord Chief Justice to be obtained. I join the noble Lord, Lord Maginnis, and also my noble friend Lord Kingsland in asking why.

3.15 p.m.

Lord Filkin: As has been said, the clause removes the formal requirement for the Lord Chief Justice's agreement to the removal or suspension of a person from a listed judicial office. However, the Lord Chief Justice will be consulted on the removal. Clause 5 more closely reflects the recommendation of the Criminal Justice Review.

Perhaps I may set out why we do not believe that there is a risk or a weakness here in relation to the independence of the judiciary. First and fundamentally, the removal of a judicial office holder can only follow the recommendation of a judicial tribunal. Such a tribunal will be brought into existence either by, or in consultation with, the Lord Chief Justice. Therefore, at the start of the process, the Lord Chief Justice will be consulted or he himself may have convened the tribunal.

As the Committee will recall from the 2002 Act, the membership of the tribunal consists of two judges and one lay person. The nature of the judge varies according to the nature of the office holder who is being considered for misconduct. The appointment of

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the judge to the tribunal is recommended by the Lord Chief Justice. Therefore, the Lord Chief Justice has a very strong hand in setting up the tribunal and in its procedures, its terms of reference and its membership. At its simplest, there will always be two judges and one lay person on such a tribunal.

No judge can be dismissed unless such a tribunal recommends dismissal. That is stated categorically in the legislation. Therefore, the process is effectively in the hands of appropriately senior members of the judiciary with a lay member also present.

The question of who chairs the tribunal varies according to the level of seniority of the judge whose conduct gave sufficient cause for concern that it required a tribunal to investigate the issue. However, it would always be chaired either by a Lord of Appeal in Ordinary—a member of the Appellate Committee in this House—or by the Lord Chief Justice or a Lord Justice of Appeal. One of those three would always chair any judicial tribunal set up to investigate what were thought to be sufficient allegations of misconduct to warrant the tribunal. It is fairly clear that we anticipate that the circumstances in which such tribunals would be needed would arise only rarely, but that does not mean that it is not crucial and appropriate to have them.

I now turn to the other questions that were raised. The noble Lord, Lord Maginnis, rightly asked about the position of the Lord Chief Justice in such a situation. Like me, the noble Lord will have a chance to look at Hansard, but I hope that I explained the degree of judicial control over the tribunal process which leads to an investigation. The fundamental point is that a judge cannot be removed unless a tribunal so recommends. A tribunal will always be chaired by either the Lord Chief Justice himself, a judicial Member of the House of Lords or a Lord Justice of Appeal.

The question of consultation with the noble and learned Lord, Lord Carswell, and Sir Brian Kerr is a difficult issue on which to go into full detail. However, I can give a categorical assurance that the noble and learned Lord, Lord Carswell, has been fully consulted on these issues and that Sir Brian Kerr has also recently been consulted by officials in the Northern Ireland court service. Therefore, they have been part of the process of considering this matter, although I am not necessarily putting or not putting their names to it. I shall leave that question suitably anonymous.

I hope that I have explained why it is right to have a process which is so strongly under the control of the judiciary yet which, nevertheless, has a lay element in it. We believe that the clause as set out in the Bill is an appropriate means for investigating allegations of judicial misconduct, should they occur.

Lord Renton: Before the noble Lord sits down, I wonder whether he can explain one point. He referred to the need, or the possibility, of a Member of the House of Lords taking part in the final decision.

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However, is that provision based on the assumption that there will always be Law Lords in your Lordships' House?

Lord Filkin: That is one of the perennial problems of having a sequence of proposals which, as yet, have not all been put in place. I believe that this issue finds expression in the 2002 Act, which refers to members of the Appellate Committee of this House. Should we reach the point where that is changed, clearly amendments will need to be made to part of that Act in order to substitute a "member of the supreme court", if that is the terminology that we use.

Lord Mayhew of Twysden: I thank the Minister for that explanation. He majored, if I may express it in that way, on the input that the Lord Chief Justice would have in the setting up, and manning, of the tribunal. What I do not recall hearing him say is why it is necessary to make this change now. He has explained that there has been consultation. I can understand that there may be reasons for that. However, he has not explained to us, so far as I can recall, why the Government think it necessary within so short a time to make this change so that the Lord Chief Justice's consent, on top of his other input, no longer has to be obtained.

Lord Filkin: For two reasons. The noble and learned Lord, Lord Mayhew, being knowledgeable about Northern Ireland affairs, will have read the Hillsborough agreement as well as I have. More fundamentally, in many situations when a tribunal is set up, the Lord Chief Justice will already have been part of the process. So that situation is a circular one. When he is not part of the process, it will have been chaired by a member of the Appellate Committee of the House of Lords. In our view, one could hardly have a stronger test than that. And the final reason is that it brings us into line with the Criminal Justice Review report and if we think there is no strong reason not to do so, we do think that there is merit in doing so.

Lord Kingsland: Until 24 July 2002, when the Justice (Northern Ireland) Act 2002 came into force, all High Court judges in Northern Ireland were protected from dismissal by a requirement that it could only take place on an Address of both Houses of the United Kingdom Parliament. This procedure was replaced in the 2002 Bill by an equivalent double lock procedure. For a dismissal to take place, first the tribunal, with a majority of judges, was required to recommend dismissal. The second part of the lock was that the Lord Chief Justice of Northern Ireland also had to give his or her approval.

Thus the previous situation was the double lock of both Houses of Parliament. The new situation since July 2002 is the double lock of the tribunal and the Lord Chief Justice. The Government were entirely satisfied with that situation in the middle of 2002. They fought for it, they argued for it, they rationalised it. Now, less than two years later, the Government have decided to remove one of those two locks.

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I have listened to what the Minister said with interest and a degree of sympathy. However, I am forced to conclude that a reasonable person, observing what the Government are proposing and listening to what the Government have said in this debate, would conclude that the reason for the removal of the second part of the lock is wholly political. There seems absolutely no legal rationality whatsoever for doing what the Government have done. If that conclusion is right, it is a very serious matter. I shall not ask your Lordships' House to vote on this matter today but I shall certainly return to it at Report. I withdraw my objection to Clause 5 standing part of the Bill.

Clause 5 agreed to.


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