Justice and Security (Northern Ireland) Bill

I entirely accept what the noble and learned Lord says, but the argument rejected by the High Court of Northern Ireland stands alone and is not to be considered in relation to the clause as it was originally drafted, but is of general importance. If there is a conflict of opinion about what Shuker actually said—and that seems to be the case, because the noble and learned Lord reiterated that he thinks that the Government have got it right and that the JCHR was wrong in its interpretation of that judgment—why can we not obtain further opinions? Should it be left to your Lordships to have to decide whether or not they accept the opinion of the noble and learned Lord or that they prefer the combined wisdom of the JCHR? Surely it is not satisfactory that we should be left in the position of having to choose between equally eminent and distinguished legal authorities in making up our minds on how to treat this clause. If the noble and learned Lord, Lord Mayhew, is right, that debate may be academic anyway, because he said that the judges have always found a way round the exclusion of their jurisdiction from particular cases. What we need to find out from the noble and learned Lord before we leave this matter altogether, is whether there are any other ousters in the statute book. We heard only about the attempt by the Government in 2003 regarding the treatment of claimants, which, as the noble and learned Lord acknowledged was a mistake by the Government; he has also acknowledged that the original drafting of this clause was a mistake. So why then is the whole clause not a mistake? Is there any other provision in the statutes where such an ouster clause exists? If not, I suggest to your Lordships that, once we limit the jurisdiction of the courts in this way, we are embarking down a very dangerous road indeed. We think that it would be safest, as the noble Lord, Lord Trimble, recommends, to leave the Shuker judgment as it stands and not to have this clause on the statute book.