433 / 736
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
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