Clause 3 - Judicial Appointments Commission

Justice (Northern Ireland) Bill – in a Public Bill Committee am 5:30 pm ar 29 Ionawr 2002.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Lembit Öpik Lembit Öpik Democratiaid Rhyddfrydol, Sir Drefaldwyn 5:30, 29 Ionawr 2002

I beg to move amendment No. 140, in page 2, line 19, leave out paragraph (b) and insert—

'(b) five persons nominated by the Lord Chief Justice and appointed by the First and deputy First minister, acting jointly (referred to in this section and Schedule 2 as ''judicial members''),

(c) a barrister nominated by the General Council of the Bar of Northern Ireland and a solicitor nominated by the Law Society of Northern Ireland and appointed by the First and deputy First Minister, acting jointly (so referred to as ''legal profession members''), and

(d) five persons who do not hold (and have never held) a protected judicial office and are not (and have never been) barristers or solicitors, appointed by the Secretary of State (so referred to as ''lay members'');

and a reference in Schedule 2 to a non-judicial member is to a member who is either a legal profession member or a lay member.'.

Photo of Mr Peter Pike Mr Peter Pike Llafur, Burnley

With this it will be convenient to take the following amendments: No. 141, in page 2, line 28, leave out subsection (5).

No. 2, in page 2, line 29, leave out 'five' and insert 'six'.

No. 3, in page 2, line 34, leave out 'five' and insert 'four'.

No. 4, in page 2, line 34, leave out '(and have never held)'.

No. 5, in page 2, line 35, leave out from 'office' to '(so'.

No. 142, in page 3, line 1, leave out 'First Minister and deputy First Minister' and insert—

'Secretary of State'.

No. 146, in schedule 2, page 71, line 32, leave out from 'the' to end of line 33 and insert—

'Secretary of State'.

No. 149, in schedule 2, page 71, line 34, leave out from 'The' to 'may' and insert—

'Secretary of State'.

Photo of Lembit Öpik Lembit Öpik Democratiaid Rhyddfrydol, Sir Drefaldwyn

Life is a boomerang. My unkind remarks about the hon. Member for Reigate and the Tory party have caused a generous compensation to arise from the Government. I simply warn the Minister that he must brace himself for a more cautious approach before we support him, as I am abandoned on an island of integrity as the Government sway one way and the other. That is the price that I pay for unwittingly repeating the hon. Member for Reigate, and not in jest.

In that context and in the spirit of listening that the Government have adopted, I hope that the Minister will listen seriously to the reasons why we have introduced the amendments. The rationale for the amendments is straightforward, and they all relate to the Judicial Appointments Commission. I raised the issue on Second Reading and explained that the Liberal Democrats are unhappy that the Bill allows the First Minister and Deputy First Minister, acting jointly, to appoint the lay members of the commission. We are concerned that that contravenes the report's recommendation that the appointments process must clearly be seen to be insulated from political influence. Safeguarding the independence of the judiciary is of singular importance to the review of the criminal justice system; we discussed that at some length earlier. The lay members of the Judicial Appointments Commission cannot afford to be seen as political appointees.

We suggested two ways to get round the problem, although only one has been selected for debate. It is contained in amendments Nos. 140 and 141, which specify that the Lord Chief Justice would nominate five judicial members to the commission, and that the Bar Council and Law Society would each nominate a member. Those seven members will be appointed by the First Minister and Deputy First Minister, as provided for in the Bill. However, the Secretary of State would appoint the lay members. That is not ideal; it means that the appointment of lay members is slightly further removed from those who are directly elected by the people of Northern Ireland.

We recognise that the amendment is complicated, in that part of the commission would be appointed by the

First Minister and Deputy First Minister and the other part by the Secretary of State. We accept that the Minister and the Government may find a more elegant solution to the issue; nevertheless, there is an issue. We put forward a separate set of proposals in amendment No. 151, which has not been called, to exclude particular categories of people from selection on the basis of a potential conflict of interest. We made the proposal to illustrate that there is more than one way to resolve the problem.

Fundamentally, our concern harks back to the issue that we discussed at the beginning of the sitting about the independence of the judiciary. Incidentally, we are not sympathetic to amendment No. 3, which decreases the number of lay members from five to four, because we believe that that number would not adequately represent the various strands in the population of Northern Ireland. Almost by definition, it would be difficult to achieve a true cross-section. I would genuinely welcome comments on the amendments from other hon. Members.

I look forward to hearing what the Minister has to say about the amendments and, more fundamentally, the issue that they raise. I hope that the Government are willing to give it some consideration, either by accepting our amendments or by giving a reassurance that we will revisit it in the time available between now and Report.

Photo of Crispin Blunt Crispin Blunt Shadow Spokesperson (Northern Ireland)

I am surprised that the hon. Member for Montgomeryshire has come forward with the construction, because it runs against the principle of devolution of justice. If Parliament is to give power to the Secretary of State to devolve justice at a time of his choosing—I hope that that will be with the agreement of Parliament; we will discuss that under a later amendment—it must be a concern if the Liberal Democrats are not prepared to trust the First Minister and Deputy First Minister to run a devolved justice system and appoint the lay and judicial members of the Judicial Appointments Commission. For the time being—until he is appointed to the House of Lords—the Secretary of State is an elected politician, as are the First Minister and Deputy First Minister. On the basis of the principle that justice should be devolved, which is the position of the official Opposition—I do not think that it is an issue across the parties—I am unable to support the hon. Gentleman's amendments.

Photo of Lembit Öpik Lembit Öpik Democratiaid Rhyddfrydol, Sir Drefaldwyn

Let me stress, first, that the amendment is not designed to cast aspersions on the politicians of Northern Ireland, but to ensure a clear distinction between the judiciary and politicians. Secondly, I am somewhat confused because on Second Reading the hon. Gentleman and the hon. Member for Grantham and Stamford (Mr. Davies) felt that we were shifting away from the Crown being the head of these matters towards a Northern Ireland context. They made great play of that, so is the hon. Gentleman now arguing that it does not apply to the amendments?

Photo of Crispin Blunt Crispin Blunt Shadow Spokesperson (Northern Ireland)

The First Minister and the Deputy First Minister will be Ministers of the Crown as part of the

devolved Administration within the realm of the United Kingdom. The Crown remains central to the functions of the devolved Administrations, whether in Northern Ireland, Scotland or Wales, as it does within the United Kingdom as a whole. The hon. Gentleman's argument does not apply.

Let me turn to the amendments, which are in two groups. Amendments Nos. 2 and 3 deal with the membership of the Judicial Appointments Commission and propose a rebalancing of the numbers; and the others deal with the qualifications of lay members.

The numbers suggested in the review as appropriate to secure a balance on the commission were not prescriptive. The review's conclusion, stated in paragraph 6.103 was:

As for membership of the Commission, we envisage a strong judicial representation drawn from all tiers of the judiciary (including a representative of the lay magistracy) and nominated for appointment by the Lord Chief Justice after consultation with each of those tiers. The Lord Chief Justice or his nominee would chair the Commission. In line with practice elsewhere, there would be one representative nominated by the Law Society and one by the Bar Council. In total the Commission might consist of around five judicial members, two from the professions and four or five lay members.

So, according to the review, no precise figure for membership is recommended. The overriding principle—it is reflected in the review—is that the judiciary must be appointed on merit.

The balance of the commission as set out in the Bill is weighted in the wrong direction, particularly regarding qualifications. I want to rebalance and reweigh it by having six judicial members and four lay members on the commission. An additional benefit of having six judicial members is that it allows for the representation of one layer of the judiciary currently unrepresented in the Bill—the deputy county court judges, of which there are 40. That idea found favour in the review.

I realise that I have jumped to amendment No. 6, Mr. Pike, but it is appropriate to debate it here, because if this group of amendments were not accepted, amendment No. 6 would necessarily fall.

Photo of Des Browne Des Browne Parliamentary Under-Secretary, Northern Ireland Office, Parliamentary Secretary (Northern Ireland Office) 5:45, 29 Ionawr 2002

It is not just a question of numbers, but tiers of the judiciary, and deputy county court judges are in the same tier as county court judges. That tier is already reflected—in line with the recommendations in the review and the Bill's provisions—in the membership of the commission.

Photo of Crispin Blunt Crispin Blunt Shadow Spokesperson (Northern Ireland)

From my reading of the Bill, I am not sure that the Minister has been properly directed. Clause 3(6) says that judicial members ''are to be'', but it says nothing about deputy county court judges being part of a tier. It is a matter of definition whether a county court judge is a county court judge, on which I turn to my hon. and learned Friend the Member for Harborough for assistance.

Photo of Edward Garnier Edward Garnier Ceidwadwyr, Harborough

My hon. Friend may turn to me, but whether he gets any assistance is another matter.

It strikes me that a county court judge is likely to hold the appointment of county court judge. A deputy

county court judge does not hold that appointment, but sits as a county court judge from time to time. It may be, and is often the case, that a deputy county court judge is a barrister or solicitor who is appointed to hold the office of deputy county court judge from time to time, or a resident magistrate who is being tried out to see if he is up to being a full-time county court judge. It is a question of numbers. I do not want to interrupt my hon. Friend for longer than the Chairman permits, but I suspect that if there are 40 county court judges in Northern Ireland, 40 of them will be ready and available to do the job. I am not sure that the numbers game is as adverse as my hon. Friend suggests.

Photo of Mr Peter Pike Mr Peter Pike Llafur, Burnley

Order. For the convenience of the Committee, I rule that amendment No. 6 be added to the group. It states, in page 2, line 42, at end insert—

'(ca) a deputy county court judge.'.

Photo of Crispin Blunt Crispin Blunt Shadow Spokesperson (Northern Ireland)

My hon. and learned Friend assisted me, because I conclude that it is possible for an appointment to be made to the Judicial Appointments Commission in line with amendment No. 6 to insist on a deputy county court judge, especially given the nature of the role of deputy county court judges. That is not a great point of principle, and if the Minister points out that I have misunderstood the nature of the ranking system in the judiciary in Northern Ireland and that by the nature of the appointments, people exercise those responsibilities only temporarily and are unlikely to be deputy county court judges for long, it may not be appropriate for this to be included in the Bill. I await the Minister's response.

However, that does not detract from the fact that there is a concern that the weighting given to the lay element in the Judicial Appointments Commission is too great. If we are to sustain the independence of the judiciary and to ensure that the appointments are made on merit, it is important that the judiciary has a substantial say in the process. That is not reflected by a commission that consists of half judiciary and half lay members, especially in relation to the qualification for lay members as described in the Bill.

I was surprised by the restriction in clause 3(5)(c) on the qualification of lay members to sit on the commission. It struck me as extraordinarily odd that if someone had been a barrister, solicitor or justice of the peace and so had some connection with the law, but had ceased to practise, that should disbar them from sitting as a lay member of the commission. I see it as a form of qualification that they had received legal training at some point and knew something about legal issues, even though the assumption would be that they would not be practising, because if they were they would be qualified under one of the other sections.

Photo of Lembit Öpik Lembit Öpik Democratiaid Rhyddfrydol, Sir Drefaldwyn

Is that restriction not necessary to achieve what we are discussing in line with one of the hon. Gentleman's earlier amendments on ensuring the independence of the legal profession? Would it not be hard to separate the two roles if former barristers and solicitors were members of the commission?

Photo of Crispin Blunt Crispin Blunt Shadow Spokesperson (Northern Ireland)

Appointing people to positions of responsibility is an important responsibility of the

Judicial Appointments Commission. If its members exercise their responsibility as lay members, their authority stems from their appointment. The fact that they have some knowledge of the system on which they are being invited to take decisions strikes me as an odd disqualification to apply. That disqualification should be removed from the Bill.

It may turn out that the recommended lay members do not have legal qualifications. That is likely, as it would be the desired scenario and, perhaps, common sense. However, Northern Ireland is not such a large constituency of professionally qualified people of the type you would want to appoint to a Judicial Appointments Commission that one should start placing restrictions on who was available. If a solicitor, who was well regarded across all communities, wanted to be appointed, it would seem odd if they could not because they had been so unwise as to qualify as a solicitor in their youth. That restriction is absurd. I hope that the Government will consider my concerns sympathetically, not least because the Minister is a lawyer.

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

I know that this was not the motivation behind the amendment, but there is a difficulty in the Liberal Democrats' amendment that says more than the amendment itself. For years I have advocated the return of justice in terms of devolution to the north of Ireland on the grounds that devolution will only grow up and be what it should be when it can take control of the most important element of its existence. That is risky; so risky that I almost adduced serious trouble, with my party and otherwise. But my views have not changed. The more I see of devolution the more I am convinced that it will only be dynamic when it takes that responsibility.

I want to put my views in those terms. It may soften some of the things I want to say, but also ameliorate some of the others. Let us consider the three points under subsection (5). Where five people are to be nominated by the Lord Chief Justice under subsection (5)(a), there could be no suggestion that any lack would be politically motivated. Subsection (5)(b) proposes that a barrister should be nominated by the General Council of the Bar of Northern Ireland. The Bar of Northern Ireland would not make a political nomination. Nor would the Law Society of Northern Ireland, nor indeed would the Lord Chancellor; he would not dream of it.

The two people who will be charged with that under the terms of amendment No. 140, the First and Deputy First Minister in the Administration of the north of Ireland, whoever they are at that time, cannot be trusted, so the share of the power is split and and given to the Secretary of State. He would not dream of making a politically motivated decision.

There is a problem, although I accept that that is not the intention. I accept that many people in all parts of the community in the north of Ireland have good grounds for fearing the return of responsibility for justice. The provision is one way of dealing with that fear, but I suppose that that is how things will be for some time. The view is that the great and the good would never make political appointments, but those

who are elected by the people of the north of Ireland cannot be trusted not to do so.

Something is out of balance, although again I accept that that is not intended. I also know that this point will raise hackles: there are no non-political organisations in the north of Ireland. Are there any non-political people there? If there are, I do not know them and I have lived there for 66 years; perhaps one day I will meet them. We are now getting to the heart of one of the problems, which is that politics has been frowned on in Northern Ireland. How often have those of us who come from there heard people say of someone, ''He was a decent man. He never had anything to do with politics''? I am sure that that has been heard here, too.

I believe that appointments, from wherever they come, always have a political connotation. However good, noble and learned the person who makes the appointment, no one, especially in Northern Ireland, will believe that it does not have a political tinge. The reason is that, almost by definition under the Good Friday agreement and the legislation, action is required to ensure that appointments are representative. That is what the First Minister, Deputy First Minister and the Executive are about. It is a cumbersome system, but that is what representativeness is.

When the Law Society and the Bar Council come to appoint the person, they will consider what the other appointments might be, so that they will balance. The First Minister and the Deputy First Minister—God love them—will have to consider the numbers, because people will be required to represent various sections of the community. That is inevitable. It may not be the ideal way or what people would want, but that is how it is.

We should have the confidence not to hedge our bets on devolution. We should have the confidence in ourselves as people to take the responsibility and share it honestly, justly and openly. I think that that will happen in the political process. I do not know whether it will happen in other parts of the nominating structures, but at least if the First Minister and Deputy First Minister do not act fairly, that can be dealt with. With that accountability goes representativeness. I use that term guardedly, because whatever way the numbers go, representativeness will be required.

I am worried about the implication that, if we were to add one to the number of judicial appointments and subtract one from the number of lay appointments, we would somehow get a better mix. I am worried about the thought behind that, because of the use of the phrase ''type of person that we would want to appoint to such a commission''. The type of person that I should like to appoint would not necessarily have a legal background. Those with a legal background are probably part of a legal establishment that is very protective of itself. They might even be deputy county court judges, for example. Many people in the north of

Ireland have no legal background. They have integrity and common sense and would be able to make decisions justly and fairly. That is crucial. It is a vote of confidence in ourselves that we can be fair and just and do things properly.

Photo of Mr Tony McWalter Mr Tony McWalter Labour/Co-operative, Hemel Hempstead 6:00, 29 Ionawr 2002

Does my hon. Friend believe that in a society in which 95 per cent. of people associate themselves with the description Catholic or Protestant, it would be helpful to have five lay members? People will watch like hawks which grouping gets three and which gets two. There are four major political parties but there will be five lay members. Might not four be a more manageable number than five, other things being equal?

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

I take the hon. Gentleman's point. Four—or six, or 10—might be better. It depends on the political fallout at the time. In the election for Deputy First Minister the numbers did not stack up, and a metamorphosis had to take place. I take that point—but I do not believe that that is the point that the hon. Gentleman is making. I do not view the matter in terms of Catholic or Protestant, or even in terms of Unionist or nationalist. I hate using such labels. In many ways, those terms are redundant.

There will be many debates about the judiciary. Some people might be perceived to be Unionist who very much are not, and some might be perceived to be Catholic who might be Unionist, among other options. A handy number of labels that we can stick on people depending on the number required at any given moment in time will not work.

I would rather see appointed a good, strong, hard-line Unionist who would properly present a good strong Unionist point of view on that commission or other commissions, than create what we have had in the north of Ireland for 30 years—a soft belly of those who are reliable and will not rock the boat, who fall into a pattern socially, academically and in every other way, and ultimately do what they are told.

We have the opportunity to grasp the nettle. The question is whether we have the courage to stand on our own feet, to take on the future ourselves and do it properly, or whether we shall pass the buck again to a Secretary of State or whoever else it may be? If devolution is going to work well, that will be the cornerstone, because once justice returns as a devolved power, the fragmentation of energy and much of the other nonsense will go by the board. There will be real responsibility to be shared.

Photo of Edward Garnier Edward Garnier Ceidwadwyr, Harborough

I want to make two brief points that I hope will be of assistance. I shall perch very carefully on amendment No. 4, which was proposed by my hon. Friend the Member for Reigate. Subsection (5)(c) says that the other members appointed to the Judicial Appointments Commission should include:

five persons who do not hold (and have never held) a protected judicial office and are not (and have never been) barristers or solicitors (so referred to as ''lay members'').

As we know, a protected judicial office is defined under clause 2(5) and means:

the office of Lord Chief Justice, the office of Lord Justice of Appeal or a listed judicial office.

Under clause 3(6), that means that 30 of the 34 listed judicial officers under schedule 1 are precluded from being either judicial members, or—by virtue of their holding a protected judicial office—lay members. Whether it is fair that 30 of those office holders should be excluded all together, I leave for others to work out. I simply want to raise that issue.

My second point is that if we exclude from lay membership of the Judicial Appointments Commission anyone who has ever been a barrister or solicitor, the commission will be denied the assistance of schoolmasters, academics and accountants who may at some stage have qualified for the Bar or as a solicitor. Surely, the answer to the problem is not to say:

and are not (and have never been) barristers or solicitors,

but to specify those who never been practising barristers or practising solicitors.

There is a distinction between a member of the legal profession who is actively working within it—and who could therefore be biased towards the legal profession, and thus ought not to be a lay member—and one who is not. There will be Members of Parliament who qualified as barristers but who have never practised, and who would have something of value to give as effective lay members to the Judicial Appointments Commission. Those points are not hugely exciting, but they are worth making, and I leave them with the Minister for his consideration.

Photo of Des Browne Des Browne Parliamentary Under-Secretary, Northern Ireland Office, Parliamentary Secretary (Northern Ireland Office)

The hon. Member for Montgomeryshire must be feeling fairly lonely now. On the previous group of amendments, my hon. Friend the Member for Newry and Armagh and I abandoned him. Now the hon. Gentleman has had to wave goodbye from his island to someone who is paddling away—but perhaps he has got used to that.

The other preliminary point is that we should not rely on the arithmetic of the hon. Member for Reigate. Perhaps we can rely on him for other things, but the idea that the commission will be 50:50 lay and lawyers is far from the truth. It will consist of six judges, five of whom will be appointed by the Lord Chief Justice, and two lawyers—one barrister and one solicitor—which makes eight lawyers out of a total membership of 13. Not only will there be at least as many judges as lay members—indeed, there will be one more—but there will be two other lawyers, too. One of those will be there specifically to represent the Bar—I mention that particularly for the hon. and learned Member for Harborough—and the other to represent solicitors. There is therefore something to be said for disqualifying other people who have the same qualifications. Whether they have the same interests, or whether the measure should be whether they have practised, there is something to be said for not allowing those branches of the legal profession double representation by accident.

Photo of Crispin Blunt Crispin Blunt Shadow Spokesperson (Northern Ireland) 6:15, 29 Ionawr 2002

I am concerned that the Minister has been educated too long in the school of the block vote. There should be no suggestion that the judicial members of the commission will vote as a block. They will surely take decisions as individuals on the

merit of the cases that come in front of them, and according to their work within the commission. The issue of whether the judicial members should have a majority cannot be presented in such terms. It is much more about where the balance of skills should lie on the Judicial Appointments Commission, and I believe that that balance should give a slightly greater weighting to members of the judiciary.

Photo of Des Browne Des Browne Parliamentary Under-Secretary, Northern Ireland Office, Parliamentary Secretary (Northern Ireland Office)

In the words of many of my clients when I practised criminal law, ''He started it''. I was merely trying to correct the hon. Gentleman's accidental mistake of arithmetic by pointing out that a commission that consists of 13 people, eight of whom were likely to be lawyers, could not be described as 50:50 lay members and lawyers, as he described it. Now that we are talking about the same commission, perhaps I can move on.

The other point made by the hon. Member for Reigate—I do not know whether every Committee member heard it—was that he would be interested to hear what I, as a lawyer, had to say about his arguments, because he appeared to be sticking up for the legal profession. I have never been one for jobs for the boys. As I have been an advocate of devolution all my life—particularly for Scotland, but also for any part of the United Kingdom that wants it and can improve its government with it—and as I am also an advocate of a judicial appointments commission for Scotland, it is unlikely that my transition from lawyer to Back Bencher to Minister would see me abandon that and create opportunities especially for the profession. My short experience of Northern Ireland as a Minister has shown me that there are more than enough opportunities for the legal profession there, and I do not get the sense that any member of the profession is running about looking for work.

There were four sets of amendments under clause 3, consisting of three groups and one set of one, but now there are three, because you have sensibly and logically added amendment No. 6 to this debate, Mr. Pike. The first set was tabled by the official Opposition and would restrict the involvement in the new commission. The second set was tabled by the Liberal Democrats and would put the Secretary of State back in the driving seat in the appointment of lay members, although I now understand its purpose more clearly. It tries to reflect more accurately the recommendations of the review, but we shall shortly consider whether that is a strong enough reason to support it, or whether the hon. Member for Montgomeryshire has properly interpreted the review's recommendations, which struck a careful balance. During the consultation exercise, some argued that lay involvement had gone too far, others that it did not go far enough, as my hon. Friend the Member for Newry and Armagh implied.

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

So that there is no misunderstanding, may I point out that was not the implication of what I said? Obviously I did not make it clear enough that, for reasons that I tried to explain, I support the Government's position.

Photo of Des Browne Des Browne Parliamentary Under-Secretary, Northern Ireland Office, Parliamentary Secretary (Northern Ireland Office)

I apologise sincerely to my hon. Friend. Now that I have had a few more moments for reflection, I believe that he was arguing for strong

representation instead of re-arguing the numbers. To that extent, I agree with him; he said some things that several hon. Members would have been pleased to hear, especially about his view of the value of the devolution of criminal justice and related matters to the Executive and Assembly in Northern Ireland. They are views that I, as a Minister, share—and they are shared by the majority of politicians who speak for a significant majority of the people of Northern Ireland and share their aspirations.

There is a temptation in Northern Ireland to say, ''Both sides think I haven't got it right, so I must have got it right.'' That is a dangerous argument. It is like the phrase constantly trotted out by the people in Northern Ireland who say to me, ''You must understand, Minister, that perceptions are more important than facts.'' That, too, has become dangerous in the context of Northern Ireland politics; sometimes it would help to remind ourselves that facts are more important than perceptions. If we could get back to the facts we might have a more informed debate and not run about with individual perceptions and no possibility of ever meeting on common ground. The facts would provide that common ground, if we could agree what they are.

The Bill strikes the right balance because it brings to the commission the right qualifications from the viewpoint of the judiciary and of the legal profession and also provides strong lay representation. It will bring an element to the commission's considerations different from what members of the legal profession are likely to bring, whether they are judges or practising lawyers, because it will allow contributions to be made from different perspectives. One advantage is that it will allow the issue of representativeness to be addressed in the context of the commission, which is important if the people of Northern Ireland are to have confidence in it.

Representativeness, or reflectiveness, in the membership of the commission is an exercise that the Government have tried to bring into play in other commissions and bodies in Northern Ireland. I accept that it is a difficult exercise, but it is important, and the lay element in the commission will allow the Government to undertake it. If the proposal were diluted as the hon. Member for Reigate suggests, it would make things far more difficult, if not impossible. I shall come to the other amendments in a moment.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Home Affairs)

May I seek a clarification? I know that the Minister is happy that he is not one of the ''jobs for the boys'' brigade—I am pleased about that. Of the judicial number, how many women or members of ethnic minorities in Northern Ireland are Lord Justices of Appeal, High Court judges, county court judges, district judges or lay magistrates?

Photo of Des Browne Des Browne Parliamentary Under-Secretary, Northern Ireland Office, Parliamentary Secretary (Northern Ireland Office)

The hon. Lady makes my point about representativeness. To my knowledge, there are none. It is clearly part of the purpose of the new procedure for the appointment of judges to allow people from those backgrounds and those parts of the community to apply under a transparent appointments process that allows them to reach those positions. I know that

the hon. Lady shares with me the objective that at some time in the future I, or someone else, will be able to answer that question for her—indeed, in devolved terms she herself may be able to answer it for others—in a positive way that shows progress. It is the Government's intention that the judicial appointments process will help that objective.

Photo of Edward Garnier Edward Garnier Ceidwadwyr, Harborough

May I return to lay membership? The exclusion of barristers and solicitors is inexplicit; the Bill does not tell us where the barristers and solicitors are qualified. Am I right in assuming that it refers only to Northern Ireland barristers and solicitors, or does it also exclude those who qualified as barristers in Australia but who are no longer practising and happen to be resident in Northern Ireland? I will not go through the whole Commonwealth jurisdiction, but it is not unheard of for people to move around the world having qualified in a profession in one place and not to continue in that position elsewhere.

I have a suspicion that many people in Northern Ireland who do not practise will be disappointed: simply because they qualified in Wellington or Jamaica—

Photo of Edward Garnier Edward Garnier Ceidwadwyr, Harborough

—or Zimbabwe, they will be unable to assist in the process.

Photo of Des Browne Des Browne Parliamentary Under-Secretary, Northern Ireland Office, Parliamentary Secretary (Northern Ireland Office)

The hon. and learned Gentleman knows that I do not like to disappoint people, but my reading of the provision suggests that unfortunately, it does apply to all those peripatetic non-practising lawyers who congregate in Northern Ireland awaiting jobs at the Judicial Appointments Commission. I am terribly sorry if they were misled into taking up residence in Northern Ireland in the hope of being engaged in this process.

The hon. and learned Gentleman makes a serious point by and large, but he will have to accept from me that as the Bar and the solicitors' branch of the legal profession are explicitly represented, the exclusion of their accidental representation through the lay members' door is intentional. No matter what abilities people trained in Wellington may bring to their subject, the purpose of excluding them is not to stop people making a contribution to a debate to which they could contribute, but to make room for another voice and allow lay members in.

There is no doubt that the Committee has come up with a fairly long list of people who we think could make a contribution to the debate, but in doing that we would have come up with an unmanageable commission. At some stage someone has to draw a line, from experience, as to how a commission can be chaired, operating within sub-committees or however it needs to operate, within a reasonable period of time and reach conclusions. The figure that we have chosen, which was recommended advisedly, though not exclusively, by the review, is reasonable. The breakdown was reasonable because it provided opportunities for everything that I have been speaking of.

Photo of Edward Garnier Edward Garnier Ceidwadwyr, Harborough

May I explain something? [Interruption.] I bow to no man in permitting the

Minister to take the mickey out of me, and I enjoy it—as a Tory Member of Parliament I have had to get used to it. The law that this House passes more than any other is that of the unintended consequence. I wanted the Minister to be clear, because the word ''barrister'' is limited to certain jurisdictions. One could be a Ukrainian court lawyer, but one would not be a barrister. I have made the point, and I do not want to go over it again, but it is not such a futile one.

Photo of Des Browne Des Browne Parliamentary Under-Secretary, Northern Ireland Office, Parliamentary Secretary (Northern Ireland Office) 6:30, 29 Ionawr 2002

I accept that the hon. and learned Gentleman was making a serious point, and I did not wish to belittle it. However, these consequences are not unintended. They are designed to ensure that there is proper representation of judges and other branches of the legal profession, but also proper representation of the lay population of Northern Ireland.

Photo of Crispin Blunt Crispin Blunt Shadow Spokesperson (Northern Ireland)

In my trawl of the documents and the review that informed this part of the Bill, I have been unable to find a recommendation requiring the non-qualification of lay members. Besides the Minister's judgment that that should be on the face of the Bill, has any other college of opinion come to that conclusion?

Photo of Des Browne Des Browne Parliamentary Under-Secretary, Northern Ireland Office, Parliamentary Secretary (Northern Ireland Office)

Significant parts of the Bill, as the hon. Gentleman will doubtless point out as we go along, are not direct reflections of the review. The interpretation of the recommendations of the review have been true and faithful. There is no specific recommendation for the non-qualification provision, if we can describe it that way, but it seems to be a natural consequence of seeking to protect the lay representation on the Judicial Appointments Commission from incursion by the legal profession, who are already well represented. There may be unintended consequences of that, and they will doubtless be the subject of a judicial review at some stage in Northern Ireland.

Amendments Nos. 2, 3, 4 and 5, as the hon. Member for Montgomeryshire said, all seek to amend the membership of the commission in favour of the judiciary and the legal professions. They would increase the number of judicial members and decrease the lay membership, and as if that were not enough, they also seek to open the lay membership to solicitors, barristers and former judges, although not former solicitors and barristers. I may be wrong about that latter point, but the amendments would be even worse if they also applied to former solicitors and barristers. Under the hon. Gentleman's proposals there could be a commission without a single member who was not or had not been a lawyer. In amendment No. 9, which we are not debating yet, the Opposition abandon the idea that any attempt should be made to get a reasonable representation of lay members.

I have made it clear that I believe that it was right for the review to identify the useful contribution that lay members could make to the appointments process. Hon. Members will be aware that a similar process is under way in Scotland. If my understanding of what is happening there is correct, the commission there will have a stronger lay membership and a lay chairperson. In the Bill, we are not even going as far as they have in

Scotland, which—the hon. Gentleman should remember—is also part of the United Kingdom. Lay members will bring an objective non-legal view to a difficult process, which will be valuable. Their involvement is important for public confidence, and I urge the hon. Gentleman to withdraw his amendment.

Amendments Nos. 140, 141, 142, 146 and 149 would make the Secretary of State, rather than the First and Deputy First Minister, responsible for the appointment and removal of lay members of the Judicial Appointments Commission. Before I heard the hon. Member for Montgomeryshire, I was not clear what the amendments were driving at. I wondered why he wanted to retain the Secretary of State's role in judicial appointments after devolution, and I thought perhaps that he wanted the provisions to commence straight away. I understand what he is saying now, and as a consequence, I had to refresh my memory about the debate during the review.

Paragraph 6.104 states that it is important to keep any hint of political input out of the appointment process, but that does not mean that there is no role for the First Minister and the Deputy First Minister. They have been given a clear role in the other stages of the appointments process, and recommendation 80, which is about the shape of the lay membership of the Judicial Appointments Commission, states:

The First Minister and Deputy First Minister would appoint the nominees of the Lord Chief Justice and the professions and would secure the appointment of lay members through procedures in accordance with the guidelines for public appointments (the Nolan procedures).

That is exactly what the provisions do. They have the added benefit of creating the set of circumstances that other hon. Members have spoken of, which allow a strong lay voice, and allow the First Minister and the Deputy First Minister to meet the challenges suggested by other hon. Members. I think particularly of the comments of my hon. Friend the Member for Newry and Armagh.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Home Affairs)

I am sorry to interrupt again, but I would like to clarify one crucial point. What if the First Minister and Deputy First Minister cannot agree on an appointment? One or the other may end up with a veto over the appointments of the lay members.

Photo of Des Browne Des Browne Parliamentary Under-Secretary, Northern Ireland Office, Parliamentary Secretary (Northern Ireland Office)

I am grateful to the hon. Lady for that contribution. Our stock answer would be that we are not planning for failure—but that is about as sensible as assuming that I must be right if both sides think that I am wrong. Under devolution, cross-community voting and the operation of the Office of the First Minister and Deputy First Minister rely substantially on co-operative working between those two important members of the Executive. At least one member of the Committee could share his experience of the tensions with us, but I will not invite him to do that.

We all know that there are tensions in Northern Ireland society. We could not ask those office holders to carry out the job, among the many that we have asked them to carry out under the Northern Ireland Act 1998, without giving them the backstop of planning for failure. That does not seem any more challenging than many of the things that we have asked them to do. We must trust devolution, trust the

structure and trust whoever is in those positions to understand and operate it with a view to complying with statutory requirements rather than failing.

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

The Minister was asked an interesting question. I cannot imagine the First Minister and the Deputy First Minister agreeing about everything—that is an understatement.

A more fundamental point arises. Devolution in justice will not take place unless it has cross-community support, not just from two people, one called the First Minister and the other called the Deputy First Minister, but from the entire political system. Such support will not arrive on a wing and a prayer. People will want to know exactly what devolution entails before they give that cross-community support. Therefore, I imagine that there will be a long process of negotiation during which such matters will be worked out.

However, the Minister is right to say that the First Minster and the Deputy First Minister will appoint—

Photo of Mr Peter Pike Mr Peter Pike Llafur, Burnley

Order. Interventions must be brief.

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

—huge numbers of people. They thought that they could not appoint four lay people to the commission. The mind boggles.

Photo of Des Browne Des Browne Parliamentary Under-Secretary, Northern Ireland Office, Parliamentary Secretary (Northern Ireland Office)

I am grateful to my hon. Friend. Members of the Committee will appreciate the value of his contribution, in view of his experience.

I want to draw my remarks to a conclusion, because the hon. Member for Montgomeryshire deserves more detailed criticism of the amendments. My interpretation is that the review was anxious to ensure that Assembly members were not appointed as lay members of the commission, and that has been provided for in paragraph 19 of schedule 2. We have been faithful to recommendation 80 in allowing the First Minister and the Deputy First Minister to

secure the appointment of lay members through procedures in accordance with the guidelines for public appointments—

that is, the normal procedures. It is not appropriate to put in statute the requirement to follow normal procedures; they will apply in any event.

Another criticism of the hon. Gentleman's approach is that it betrays a surprising mistrust of the procedures that we are setting up, which will come into force after devolution, and will require some confidence in the devolution process. I know what his views on devolution are, and I am surprised that he has that regrettable lack of confidence. We do not believe that the First Minister and Deputy First Minister, acting jointly, would appoint inappropriate lay members, nor that the Lord Chief Justice would appoint inappropriate judicial members. If we had as little confidence as the hon. Gentleman has in the proposals, we would not propose a Judicial Appointments Commission or work towards devolution in criminal justice matters at all, let alone to a target time of after the Assembly elections in 2003. We are confident that we have implemented recommendation 80 correctly.

Through amendment No. 6 the hon. Member for Reigate and those supporting him seek to stipulate that a deputy county court judge shall be one of the

judicial members of the commission. If I understood him correctly, he prays in aid, with some support from the hon. and learned Member for Harborough, the number of members, which is 40. However, that would go against the review, which recommended one judicial member from each tier of the judiciary, and carefully balanced the number of legal representatives against the number of lay representations. Although the review took a broad brush and did not intend to be prescriptive, it was. Deputy county court judges are not a separate tier, any more than temporary judges of the High Court are a separate tier. They are referred to in the list in schedule 1—as, for that matter, are deputy resident magistrates, who are referred to in the Bill under their proposed new title.

The Government have been faithful to the review's recommendations, in that the list to which the hon. Member for Reigate referred includes an appropriate member of each tier of the judiciary, including the lay magistracy, to reflect the commission's recommendation. To be consistent with his arguments on representation based on the list, we would have to find not one more, but at least three more, representatives, because the temporary High Court judges are the same as the deputies that he seeks to include, and the deputy registered magistrates are no different in their relationship to their tier. I therefore invite the hon. Gentleman to withdraw the amendment.

Photo of Crispin Blunt Crispin Blunt Shadow Spokesperson (Northern Ireland) 6:45, 29 Ionawr 2002

This is an important issue because, although the Minister has spoken about the need for different perspectives in the make-up of the Judicial Appointments Commission, the most important perspective is judicial because it is the profession that should have the most important knowledge of the appropriate people to promote. In view of the number of people available for appointment, especially at the higher levels, the number of positions that are available for appointment and the small size of the pool from which people are drawn in Northern Ireland, it would establish the principle of independence and merit if the judicial members of the commission had more influence. It is wrong that there should be five judicial members under the chairmanship of the Lord Chief Justice, which in effect makes six, and five lay members.

The Minister has chosen to include the members from the legal profession with the judicial members for the purposes of his arguments, which is unfair. The judiciary should have the most influence within the commission on which of its members should take up the appointments, which is why the balance of the commission is wrong. Too often our reflex response is to say that lay members must be good by definition because they are independent and supply additional qualities that a profession cannot bring. Given the appointments system under the First Minister and Deputy First Minister, it is especially important that the commission is rebalanced as I propose.

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

I share the hon. Gentleman's view that professional expertise is invaluable, but what has led to this situation whereby there is not a single female judge or person from an ethnic group? That is the

structure that the hon. Gentleman admires so much, and that I have admired so much. We must make the fundamental changes that have to be made.

Photo of Crispin Blunt Crispin Blunt Shadow Spokesperson (Northern Ireland)

I have some sympathy with what the hon. Gentleman says about outcomes. Of course everyone would want all the professions, of which the judiciary is the most important, to try as far as possible to reflect the community that they serve. However, the most important principle, as the review acknowledged, is merit. That must take priority over requiring the judiciary to be representative—which the Bill does not invite us to do.

In taking us forward to the debate on amendment No. 9, the Minister misrepresented the arguments that I will use. I tabled the amendment to address some of the concerns that the hon. Member for Newry and Armagh has just expressed.

This is an important issue, and I shall press amendments Nos. 2 and 4 to Divisions on the assumption that if amendment No. 2 is accepted I shall wish to continue with amendments Nos. 3, 4 and 5. It is a matter of principle that judicial members should have a greater weight on the commission.

Photo of Lembit Öpik Lembit Öpik Democratiaid Rhyddfrydol, Sir Drefaldwyn

In my definition, ''lay member'' means not a professional. I am not convinced that people who are expert or highly professional in their trade would be regarded as lay members. However, having had the argument, we shall all have to make our own decisions.

Not satisfied with rejecting my offer of assistance on the previous group of amendments, the Minister now chooses to reject the offer of extra power for the Secretary of State for Northern Ireland. This is the political revolution that we have been waiting for from a Government who claim to be inclusive. I only hope that it will spread like wildfire throughout their ranks, so that when the Prime Minister looks around aghast at all the power that is being given away to others and says, ''Where did this begin?'', we can point at the Minister and say, ''He started it.''

The Minister said that I must be feeling fairly lonely. I have heard it said that it is sometimes necessary to be right and yet to feel as if one stands alone. This is not one of those occasions.

As the Minister rightly deduced, our efforts with the amendment were based primarily on the need for the review strategy to ensure that appointments and political influence are clearly separated. As the hon. Member for Newry and Armagh said, the structure proposed in the Bill leads inevitably to the prospect of a degree of political influence in the matter of appointments. That does not necessarily make it wrong, given that that is no different from the way in which many appointments are made at Westminster and elsewhere.

The inference is that if on some future occasion we find ourselves debating the issue in the House, with great concern expressed about the decisions made by a future First Minister or Deputy First Minister, we will

not have a right to complain. That is the consequence of the decision that we are making on devolution. We must clearly understand that we are importing into the arrangement in Northern Ireland the same danger of political appointment as exists here in the Palace of Westminster.

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

I simply ask whether that might not be a much more honest approach. Should we not recognise the differences that exist, rather than making the assumption that is made elsewhere, that no political influence is used in legal appointments? Would that not be much more honest, healthy and dynamic than hiding behind the notion that somehow or other, if senior judges do something there are no political implications?

Photo of Lembit Öpik Lembit Öpik Democratiaid Rhyddfrydol, Sir Drefaldwyn

The hon. Gentleman makes a crucial point. I think it genuinely beneficial to have on the record the fact that we accept the dangers that he has acknowledged, and which I, too, raised. If that is what we want, we should then make a positive decision to treat like with like and accept the potential consequences at some future point. Although I am concerned about how long we are taking to debate these amendments, given the other business that we have, the feeling of the Committee seems pretty clear, and it therefore seems to have been a worthwhile debate, although I accept that the amendments as they stand were open to the criticism that they have received.

As I listened to the speech of the hon. Member for Newry and Armagh—I mean this completely genuinely—I remembered why I am occasionally so impressed with our Committee structure. The hon. Gentleman added genuine value to the debate, highlighting the issues that we have discussed from a position of experience. That is the priceless quality of a Committee such as this, when it works effectively. I want to thank him for providing a clarity that has deepened my understanding of a point that I had only grasped implicitly. Now I grasp explicitly the point about accepting the danger of the structure but not necessarily rejecting the structure as a consequence of that danger.

My conclusion from our debate is that devolution does not take away the risk. Devolution requires a cost-benefit analysis and a risk analysis, but at the end of the day, although we are conscious of the risks that we take, we should not expect the devolution settlement to eliminate something that, in 1,000 years of Parliament, we have failed to eliminate here. Although I shall withdraw the amendment, I hope that we have achieved something that I did not really expect from these amendments: a deeper understanding of the consequences of what we are doing here. I hope that in the light of the debate, we will bear that valuable insight in mind as we seek to maintain the balance between providing the Assembly with the powers that it deserves and acknowledging that that sometimes requires us to take a few risks. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: No. 2, in page 2, line 29, leave out ''five'' and insert ''six''.—[Mr. Blunt.]

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 16.

Rhif adran 2 Adults Abused in Childhood — Clause 3 - Judicial Appointments Commission

Ie: 5 MPs

Na: 17 MPs

Ie: A-Z fesul cyfenw

Na: A-Z fesul cyfenw

Question accordingly negatived.

Amendment proposed: No. 4, in page 2, line 34, leave out '(and have never held)'.—[Mr. Blunt.]

Question put, That the amendment be made:—

The Committee divided: Ayes 5, Noes 17.

Rhif adran 3 Adults Abused in Childhood — Clause 3 - Judicial Appointments Commission

Ie: 5 MPs

Na: 17 MPs

Ie: A-Z fesul cyfenw

Na: A-Z fesul cyfenw

Question accordingly negatived.

Further consideration adjourned.—[Mr. Stringer.]

Adjourned accordingly at two minutes past Seven o'clock till Thursday 31 January at half-past Nine o'clock.