The Gazette 1967/71

so " in a unique position to see that the require ments of justice are recognised and respected, and that the rule of law is upheld and protected from conflict between the several branches of Govern ment." Dereservation, the report says, would end this convenient arrangement, since in Northern Ire land it would be impracticable for the Lord Chief Justice to assume political as well as judicial responsibility. " We . . . regard dereservation as likely to produce a serious and enduring disad vantage in this respect." The heart of the matter, the report goes on, is the fact that Northern Ireland " is a small area where controversy has abounded among a small and hitherto divided community. We believe that confidence in the administration of justice at the highest level has been and will be best promoted and maintained by keeping the superior courts entirely outside the realm of local political con tention ... in all the circumstances, we do not favour investing the Parliament of Northern Ire land with control of or responsibility for the Supreme Court." Further enablement (3) The committee in fact chose the third possi bility for further " enablement" of Stormont to legislate in aid of the Supreme Court: the Quekett approach, devised by the late Sir Arthur Quekett, the first parliamentary draftsman under the Nor thern Ireland Government. Simply, the device is to have Westminster repeal the limiting sections of the Government of Ireland Act, except for " such essential subject matters as ought to be kept within the exclusive power of Westminster." The report goes on to suggest, in legal detail, just how this could be done. The report, however, mentions that the com mittee was in " considerable doubt" about whether it should express its opinion on these matters, since " despite their legal and consti tutional importance, they raise issues which have political aspects and which in certain events might become controversial. We felt that to make recommendations on such issues might jeopardise or delay the passage into law of our other recom mendations." The question might be better dealt with in a separate Bill. But, the report says, " the Government of Nor- 147

Ire!and-U.K. committee to examine the present system of assize courts and the Belfast City Commission. It also says that) in view of the increased work load since 1920, the statutory minimum number of Supreme Court Judges should be raised from five to seven. On the constitutional question, the report faces the problem that, while the Supreme Court in the North, unlike the lower courts, is reserved to the legislative authority of Westminster, it has to deal with legislation from Stormont. Westminster has passed legislation "enabling™ Stormont to make laws, on the Westminster model, to take account of new factors as time passes ; but delay and uncertainty can arise and sometimes a divergency of view between Stormont and London, and the whole situation, the report says, is regarded by the Stormont Government as unsatisfactory. Possible solutions The report then considers three possible solu tions : (1) A wide general enabling clause to be passed at Westminster: this, the report concludes, would only cater for the future to a limited extent, owing to the impossibility of foreseeing many of the changes in legislative requirements which time is certain to bring. (2 Dereservation: this would repeal the part of the Government of Ireland Act that makes the Supreme Court of Northern Ireland a reserved service, under Westminster's authority. The Shell Committee advised this in 1957, but in its own paragraph 18 said the appointment of judges " should remain in Imperial hands." The MacDermott reports notes that the Northern Northern Government " though much concerned with the subject of enablement, did not seek dereservation . . . ." The committee goes on to point to the smallness of the N.I. jurisdiction and says that " an ultimate control of the adminisration of justice is remote enough to stand above local controversies may have an important virtue of its own." While this argument was not decisive, the committee adds that at present Northern Ireland shares the advan tage of having the ultimate oversight of the Lord Chancellor in London, who is both head of the judiciary and a member of the Government, and