Schedule 2 - Judicial Appointments Commission

Justice (Northern Ireland) Bill – in a Public Bill Committee am 2:30 pm ar 31 Ionawr 2002.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Amendment proposed [this day]: No. 91, in page 71, line 34, leave out 'may' and insert 'must'.—[Lady Hermon.]

Question again proposed, That the amendment be made.

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

It seems to be the pattern that I am speaking when we adjourn in the morning and that the new Chairman must call on me to continue when we resume.

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

Perhaps the hon. Gentleman will allow me to warm up a little.

I was discussing the effect of amendment No. 91 and the Government's reasons for resisting it. To quickly repeat some of the arguments, the amendment relates to the provisions for dismissing lay members of the Judicial Appointments Commission in certain cases and is intended to remove the discretion of the First Minister and Deputy First Minister in that regard. The Government's view is clear, and we expect the First Minister and Deputy First Minister to act. We do not, however, want to impose a duty on them to do so, because several of the reasons for dismissal are matters of judgment and there would remain an element of discretion, with or without the amendment. An element of discretion is built into the schedule, although it might not seem, on the face of it, to apply to two of the criteria—conviction for a criminal offence and bankruptcy—which some would argue are clear-cut. There is, however, an argument for discretion and a need for flexibility even in those cases.

We must trust the First Minister and Deputy First Minister; we should not tie their hands and compel them automatically to dismiss a lay member who has, for example, been convicted of a minor road traffic offence. The schedule contains generic phrases to describe the circumstances that would justify considering dismissal, but a phrase such as ''a criminal offence'' might refer to a minor road traffic offence. We

must bear in mind that we are asking people to take on a difficult and potentially onerous job, and we should trust the First Minister and Deputy First Minister to apply an element of discretion, albeit in circumstances in which dismissal would be appropriate.

Photo of Edward Garnier Edward Garnier Ceidwadwyr, Harborough

It may be of some reassurance to Committee members if the Minister could clarify how one of the provisions in the schedule might be used. Equally, he could issue practice guidance for the First Minister and Deputy First Minister, although I accept that he does not want to interfere with their discretion.

In any case, paragraph 2(4)(d) refers to someone who

''is otherwise unable or unfit to exercise his functions.''

Someone with a criminal record for dishonesty or violence—and certainly for terrorism—would be wholly unsuited to exercising functions as a member of the commission. Clearly, we would prefer people of that calibre not to get on to the commission in the first place, but will the Minister comment on the use to which paragraph 4(d) will be put?

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

I am grateful to the hon. and learned Gentleman for inviting me to list the circumstances, but I do not think that it would be particularly helpful, for the reason to which he alluded—I suspect that he agrees with me. When a statutory discretion is given to people such as the First Minister and Deputy First Minister in the context of devolution, it is not for me, as a Westminster Minister, to issue guidance to them on when they should exercise it. I have repeatedly said that I trust in devolution and I trust the devolved Administration to exercise their judicial functions appropriately. I have no reason to believe that they will not.

The inclusion of the catch-all phrase in paragraph 4(d) is understandable, because of the many possible sets of circumstances that might lead to a person's dismissal being considered appropriate. However, it is not for me to list the circumstances that may apply. By doing so, I may inadvertently give people the idea that my list was intended to be exhaustive, and that any circumstances that I did not mention do not apply. The circumstances should be considered case by case.

In relation to my earlier point, I can think of circumstances in which people could become bankrupt through no fault of their own. Their financial circumstances could be such that the situation was not caused by their own fecklessness, inattention to their own affairs or inability to manage them. For that reason, although it would seem to be a set of circumstances in which discretion ought not to apply, there is value in allowing the First Minister and Deputy First Minister discretion.

Photo of Edward Garnier Edward Garnier Ceidwadwyr, Harborough

It is good of the Minister to give us an example, but I am not sure that it is terribly helpful, as such a situation is already covered by paragraph 4(c). The Minister must have his own opinions, as an individual—

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

I shall give one example of a set of circumstances in which a person would be unable or unfit to exercise his functions. If, for example, a person was so ill that they were unable to attend meetings, it would be in their interest not to be placed under additional pressure by being threatened with dismissal for failure to discharge their functions. If, for example, a person's mental health became such that there were some doubts about their judgment, they might be unable or unfit to exercise their functions.

The same would be true if, for example, a person had to go to Zimbabwe because a relative was ill and had to be cared for, and was going to be away for six or seven months. There are many possible sets of circumstances. To list them does not help our debate about whether the First Minister and the Deputy First Minister should be allowed discretion in the matter.

The bankruptcy example from paragraph 4(c), to which I reverted, shows why I argue that such discretion is needed, even though some of the circumstances seem not to require it. It could be exercised in certain cases involving minor road traffic offences and persons who become bankrupt through no fault of their own. Those are good examples. I trust that that clarifies the matter for the hon. Member for North Down (Lady Hermon). If it does, and she is persuaded that there is a need for that discretion, I hope she will be persuaded to withdraw the amendment.

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

I am glad to hear that, because I listened to the debate between the hon. Lady and the Minister. One can sometimes tell when the Minister has not convinced himself. His reply to the hon. Lady was a good example. That is why I shall support her in pressing the amendment to a Division.

It has not yet been pointed out that someone who has been convicted of a criminal offence or is the subject of a bankruptcy order will have been on the receiving end of justice from someone whom they might appoint. That would be a clear conflict of interest, and the amendment, if accepted, would avoid it.

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

I thank the hon. Gentleman for that intervention.

The benchmark against which the Bill should be measured is the Belfast agreement—which some prefer to call the Good Friday agreement. For ease of reference, the aims of the criminal justice system are set out on page 1 of the review of the criminal justice system in Northern Ireland. It states:

''The Agreement set out what the participants to the multi-party negotiations believed the aims of the criminal justice system to be''.

Those aims include having

''the confidence of all parts of the community''.

I am not convinced that everyone in Northern Ireland will have confidence in a Judicial Appointments Commission if a non-judicial member can remain in office when he is unable or unfit to exercise his

functions. I repeat that the First Minister and Deputy First Minister should be under a duty, rather than have a discretion. That would build the community's confidence in the commission.

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

What would happen if a person was unable or unfit to exercise the functions for a limited time? Should he be dismissed, or should an element of discretion be allowed? For example, would it not matter if he was unable to exercise his functions for three weeks, but might it matter if it was for five months? Should a person be dismissed if he accumulated an automatic conviction for careless driving?

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

I thank the Minister for that challenging intervention. I think that his point about a person being unfit for a period of time is dealt with in paragraph 2(4)(a), which provides that a non-judicial member may be dismissed if

''he has without reasonable excuse failed to exercise his functions''.

If he has a reasonable excuse for being unfit or unable to exercise his functions, it is covered; but to say that someone convicted of a criminal offence can sit on the commission does not inspire me with confidence.

Photo of Edward Garnier Edward Garnier Ceidwadwyr, Harborough

I not only agree with the hon. Lady, but I can take her argument a little further. The Minister's example of someone with a driving offence is hardly to the point. As it happens, some members of the English and Welsh judiciary have been caught speeding; indeed, in the past—I cannot comment on the present bench—one or two have had drink-driving convictions. There is a distinction between the motoring offences that the Minister is trying to palm us off with and the sort of serious criminal offences that the hon. Lady and I are concerned about. It cannot be beyond the wit of man, woman or civil servant—let alone Ministers—to draw up a form of words that distinguishes—

Photo of Mr Peter Pike Mr Peter Pike Llafur, Burnley

Order. Interventions should be brief.

Photo of Mr Peter Pike Mr Peter Pike Llafur, Burnley

I do not think that it is brief, and I ask the hon. Gentleman to bring it quickly to a close.

Photo of Edward Garnier Edward Garnier Ceidwadwyr, Harborough

Thank you, Mr. Pike.

It cannot be beyond the wit of people in the Room or outside it to draw up a form of words that distinguishes between minor offences and serious offences that contradict the criminal code.

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

I thank the hon. and learned Gentleman for that helpful intervention. I agree entirely with what he said and I invite the Minister to comment.

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

I do not intend to rise to the bait of the suggestion by the hon. and learned Member for Harborough (Mr. Garnier) that we should discuss an amendment other than the one that we have before us—and a prospective amendment at that. There was a lot of nodding when the hon. Lady referred to paragraphs 2(4)(a) and (d) as covering the same

circumstances. Before she closes, let me point out that paragraph 2(4)(a) refers to the past and paragraph 2(4)(d)--the one for which I was asked to give examples--refers to the future.

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

I want to make two observations. I speak from memory, but I think that, at a certain point, some 190 people were convicted under the Northern Ireland (Emergency Provisions) Act 1991 for having parked cars in security-controlled areas. Those people had committed criminal offences under emergency anti-terrorist legislation.

Photo of Mr Peter Pike Mr Peter Pike Llafur, Burnley 2:46, 31 Ionawr 2002

Order.

Sitting suspended for a Division in the House.

On resuming—

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh 12:00, 31 Ionawr 2002

I was making the point—I hope that the situation has changed, and it may have done—that an inordinate number of parking offences in security zones have been rescheduled. They were terrorist and criminal offences. The question is how the amendment deals with them.

My second observation is that, whatever is written into legislation, the matter will be ultimately determined by the parties from which the First Minister and Deputy First Minister come. As things are, I have every confidence that good sense will be shown at all times in appointing people and removing them when need be.

Question put, That the amendment be made:—

The Committee divided: Ayes 8, Noes 13.

Rhif adran 7 Adults Abused in Childhood — Schedule 2 - Judicial Appointments Commission

Ie: 8 MPs

Na: 13 MPs

Ie: A-Z fesul cyfenw

Na: A-Z fesul cyfenw

Question accordingly negatived.

Photo of Patsy Calton Patsy Calton Democratiaid Rhyddfrydol, Cheadle

I beg to move amendment No. 150, in page 72, line 35, leave out from 'background' to end of line 36.

The amendment is probing, and I suspect that we shall withdraw it if the Minister is happy to answer our questions. It is designed to ask why the annual report must include information about which part of

Northern Ireland applicants to the commission regard themselves as being most closely associated with. Our suspicion is that the provision is meant to deal with applicants being too closely centred on Belfast, and it would help if we knew whether that was the case. If it is, there should be an outreach programme to other parts of Northern Ireland.

Photo of Edward Garnier Edward Garnier Ceidwadwyr, Harborough

I want to ask a brief question about information in the annual report. It has some bearing on the amendment. Paragraph 5(2) states:

''Each annual report must include information about the persons who have applied to be...selected to be appointed''.

Many people who apply to become a judge but fail may not want their application to be known about, for all sorts of perfectly proper professional reasons. For example, a solicitor in practice with partners will not necessarily want them to know that he has made such an application until he is appointed. Equally, a member of the Bar may be somewhat wary about letting his clerk or professional clients know that he has applied. That is a simple but important point.

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

The hon. and learned Gentleman is right; the point is simple but important, which is why it is covered in paragraph 5(4). It states that

''an annual report must not identify any person or include information from which the identity of any person could be readily ascertained''.

I am sure that that adequately covers his point.

I shall answer the question posed by the hon. Member for Cheadle (Mrs. Calton) in as few words as possible, because I am conscious of the time and know that hon. Members want to make progress. Indeed, it has been urged upon me that we should do so.

There is deep concern that some parts of Northern Ireland feel under-represented in public bodies. We recognise that the concept of trying to collate information about which part of Northern Ireland people consider themselves to be most closely associated with is difficult, but the provision is an attempt to do so in the context of the report. We want to collect information to see whether there is a factual basis to support the concern, and if necessary to take steps to address it.

I hope the hon. Lady is satisfied with that and will withdraw the amendment.

Photo of Patsy Calton Patsy Calton Democratiaid Rhyddfrydol, Cheadle

I am happy with the Minister's answer, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

I beg to move amendment No. 92, in page 73, line 33, at end insert—

'(3A) Committees may not include persons who would not be eligible to be members of the Commission.'.

It may help Committee members if I draw their attention at the outset to the fact that the Judicial Appointments Commission can, under paragraphs 11 and 12,

''delegate any of its functions . . . to any of its committees''.

That includes the appointment of the judicial offices listed in schedule 1, such as, most regrettably, High Court judges. Those committees can in turn delegate those functions to sub-committees. Given the time we

rightly spent this morning scrutinising the composition of the Judicial Appointments Commission, it might come as something of a surprise to the Committee to note that under paragraph 8(3),

''A committee or sub-committee may consist of or include persons who are not members of the Commission.''

We have spent a great deal of time considering the Judicial Appointments Commission and I find it incredible that those committees need not even consist of commission members.

Although, to my regret, amendment No. 93 was not selected for debate, the Minister must, surely, accept its substance. As matters stand, people with criminal convictions can be appointed to the committees. Is the Minister telling the Committee and the Northern Ireland community that he concedes that criminals have a role to play in the judicial appointments process?

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

I was advised this morning that a matter that I wanted to raise might be better raised under the amendment that we are now considering. I shall take that advice, unless you, Mr. Pike, countermand it.

As the hon. Member for North Down mentioned, under the Bill it would be possible for a sub-committee of the judicial appointments commission not to consist of any members of the commission set up to appoint the judiciary. That seems incredible. I have sought advice about whether I have been reading the sub-paragraph properly and I believe that I am correct. I note that the hon. Member for Reigate (Mr. Blunt) has tabled a relevant amendment, too. The provision means that we have spent a long time in productive debate on the Judicial Appointments Commission, but that in theory none of its members would have to be on the committee that would appoint the judiciary. That seems wrong, to put it mildly.

I referred to the matter briefly this morning but want to reinforce it, because the proposal would be untenable in new legislation. I thank the hon. Lady for raising it again, because it is a valid point.

Photo of Mr Tony McWalter Mr Tony McWalter Labour/Co-operative, Hemel Hempstead

I want to speak in opposition to the amendment. I am a member of the European Informatics Market Group, dealing with matters of information technology.

If the committee as constituted found that some area of expertise needed to be incorporated into the judiciary, but that the relevant expertise was not available to the committee in its normal sittings, it might well want to get people to advise it on the subject in question. I have in mind particularly the fact that much crime can be organised or carried out using information technology. That could significantly change people's conception of their job in this context. I give that example simply to show how a body can be set up with particular expertise, but can then find that the expertise it needs is mainly outside its structures. It would need to amplify its expertise base to deal with those complex matters. For that reason, among others, I would want the amendment to be withdrawn.

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

As paragraph 8(3) may be discussed in this debate, I shall address those points by dealing with that provision first.

My hon. Friend the Member for Newry and Armagh (Mr. Mallon) referred to the matter this morning, and I confirmed his interpretation of the provisions in the schedule. He used the word ''theoretically''—but practically, and in every other way, the provisions will give the result that that my hon. Friend suggested.

I assure my hon. Friend the Member for Hemel Hempstead (Mr. McWalter) that the structure of the schedule recognises the necessity, in certain circumstances, to co-opt expertise, which is why it allows people who are not members of the commission to be members of committees. We recognise that additional experience, information or skills, which members of the commission may not have, may be necessary in making a decision—although the provision is not as sophisticated as my hon. Friend suggested.

Lady Hermon rose—

Photo of Des Browne Des Browne Parliamentary Under-Secretary, Northern Ireland Office, Parliamentary Secretary (Northern Ireland Office) 3:15, 31 Ionawr 2002

If the hon. Lady will hold off, I am sure that she will hear a response to her main point.

The schedule was drafted in this way because some judgment had to be made about the commission's workload and the ability of a commission of such a size to do that amount of work. The Government had to take the view that it would be unfair to ask people to devote an unreasonable amount of time, especially those who were members of the judiciary--one or two of them might be senior members of the judiciary. A judgment had to made about that and, on that basis, we decided that committees or sub-committees might be needed. More work has been done in that area and, although I cannot give precise figures as to how many vacancies the commission will have to consider, I can tell the Committee that we are now inclined to think that the degree of flexibility in the provisions will not be necessary.

I accept that there is worth in the argument that members of the commission should take the lead in the committees and sub-committees. However, it is important to retain flexibility so as to be able to bring in expertise that may be required, as my hon. Friend the Member for Hemel Hempstead said, given the full range of appointments for which the commission has responsibility. I see so many nodding heads that I think that the Committee now agrees that that is the right approach.

My hon. Friend the Member for Newry and Armagh proposed a simple solution. I have not been a Minister for long, but I have enough experience to know that the simplest solutions are often the most dangerous. His solution is deceptively simple—it cannot be right. Therefore, I ask the Committee for time to consider the issue, so that an appropriate amendment may be introduced on Report that deals with the matter and reflects the views shared in the Committee.

If the hon. Member for North Down is satisfied with that, it will save the Committee time, because I might not need to deal with her amendment. However, if she still thinks that her amendment has worth—never mind an amendment of sub-paragraph (3)—I shall go on to describe its effect, which may not be what she believes it to be.

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

I appreciate the Minister giving way and the contribution made by the hon. Member for Hemel Hempstead.

I welcome the fact that the Minister will review the composition of the committees and sub-committees. There is no difficulty in bringing expertise into a committee on which members of the Judicial Appointments Commission sit. The difficulty is that those committees or sub-committees might consist of non-members of the Commission. The entire—

Photo of Mr Peter Pike Mr Peter Pike Llafur, Burnley

Order. This is supposed to be an intervention. I call the Minister.

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

Perhaps I should be comprehensive. I have taken on board the criticism of that provision, which is shared by those who have spoken and others who have not articulated it. I undertake to table an amendment on Report to deal with it and to reflect the position of the Committee.

I insist that the structure of committees and sub-committees allows the co-opting of expertise—in particular from tiers of the judiciary that are not represented on the Commission—where necessary. A number of legal office holders from such tiers would not be able to sit on committees or sub-committees if the amendment were agreed. That could lead to the unfortunate situation in which a committee or sub-committee might be considering an appointment to a tribunal, and tribunal members would be barred from sitting on that committee because they were not eligible to be members of the commission. The provision, amended as I hope to amend it, will exclude circumstances in which a committee can be made up only of non-commission members. We shall still need the flexibility to bring in people who would otherwise be ineligible. The amendment would have an inadvertent and accidental consequence, which I do not think the hon. Member for North Down would want, so I ask her to withdraw it.

Photo of Andrew Turner Andrew Turner Ceidwadwyr, Isle of Wight

I have been trying, with the assistance of my hon. and learned Friend the Member for Harborough, to ascertain whom the amendment would cover.

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

With respect to the hon. Gentleman, had he been paying attention rather than seeking assistance from his colleague, he might have heard the answer. The amendment only impacts on people who are ineligible to sit on the commission. By process of elimination, those people are, broadly, from the tiers of the judiciary that are not eligible to sit on the commission. Because it might be appropriate and desirable for people from one of those tiers to bring their experience to a committee, the Government resist the amendment.

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

I thank the Minister for that explanation, which was very helpful. I take it that he has addressed both my points—

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

I thank the Minister. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

I beg to move amendment No. 36, in page 74, line 10, leave out paragraph 12.

When I read this provision, I thought that it was odd that there was a duty to have a lay member, but no duty to have a judicial member or someone who was eligible to be a judicial member. It seemed to be an unnecessary limitation on the commission's means of deciding how its committee structure would work. In the end, the commission will, through its membership, be responsible for all judicial appointments. Although I understand that, in today's environment, there is a need to involve lay members, that requirement is met by the totality of the commission, whose lay members—the Committee has agreed—should have no legal qualification. The requirement is too detailed to appear in the Bill, and it should be for the commission to sort out its committees and sub-committees and to take responsibility for the results of their work. The requirement for lay membership is met by the totality of the commission's membership, and the schedule imposes an unnecessary restriction on the commission's work.

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

The reason for the Government's attention to lay membership and for the provision that we eventually included in the Bill has its roots in the review. Paragraph 6.105 recommended that panels should always include a lay person where an appointment was being considered at deputy resident magistrate level or above. The review introduced that idea into the Government's thinking, but my view was that it should be applied more generally and, in particular, driven down the appointments process. Lay people may be appointed to exercise judicial functions lower down the system, and it seemed important to involve a lay person in the appointments process through the committees and sub-committees.

I see that the hon. Member for Reigate is underlining other parts of the recommendations—perhaps he should have done that before. In any event, I shall come to those in a moment. As I was saying, it seemed equally important to have lay involvement both where lay persons were being asked to carry out judicial functions and where people were being appointed to senior posts. That is why the provision is important.

Paragraph 6.105 also stated that a member of the judiciary should be included. In all probability—in fact, almost certainly—the commission will appoint a member of the judiciary to all the committees, but I have included the provision to ensure that a lay person is appointed, too. That is the simple answer to the hon. Gentleman's question, but if it does not satisfy him, he can press his amendment, although that would be

unfortunate given that it neither reflects the recommendations nor insists that a member of the judiciary be included.

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

The Minister cannot have it both ways. If he is going to rely on the review, the schedule should insist on a member of the judiciary being included. Paragraph 6.105 states that the panels

''would always include at least one member of the judiciary at the tier to which the appointment was to be made and a lay person.''

The Bill should contain a similar provision or no provision at all, and I seek to give the commission flexibility by striking the provision out in its entirety. We know the circumstances in which the review reached its conclusions and made its recommendations, and it is unreasonable for the Minister to cherry pick the bits that he likes and to rely on the review's recommendation in this instance.

The Committee has already agreed the provisions that establish the commission's make-up, and we should now follow the principle of giving the commission as much flexibility as possible, rather than of being as prescriptive as possible. If the Government are going to be prescriptive, they should be consistent and follow the review. My preference is not to be prescriptive, which is why I would prefer to remove paragraph 12.

I shall not press the amendment to a Division. I simply invite the Minister to reflect on our debate and to go back to his advisers, the Court Service, the judiciary and any others whom he thinks it appropriate to ask, to consider whether it is appropriate to remove that provision.

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh 3:30, 31 Ionawr 2002

I welcome the fact that the Minister is going to reconsider the matter. I do not believe that the provision can remain in the Bill, because I cannot see how legislation that allows for the creation of a Judicial Appointments Commission can simultaneously provide a system whereby none of those people would be involved in making judicial appointments. I look forward to hearing the Minister's proposals. The point so rightly made by the hon. Member for Reigate would then be reflected in a new approach.

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

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

I beg to move amendment No. 39, in page 74, line 15, leave out paragraph 13.

Photo of Mr Peter Pike Mr Peter Pike Llafur, Burnley

With this it will be convenient to discuss the following amendments: No. 37, in page 74, line 15, leave out 'not'.

No. 38, in page 74, line 18, leave out 'not'.

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

These are probing amendments, designed to ascertain what paragraph 13 means. I should like to know what its practical effect will be. It states:

''The Commission is not to be regarded...as the servant or agent of the Crown . . . or . . . as enjoying any status, immunity or privilege of the Crown.''

The amendments are mutually exclusive. The lead amendment would remove the entire paragraph; the others would reverse the meaning by leaving out the word ''not'', so that the commission ''would be regarded'' as the servant or agent of the Crown. I am anxious to establish precisely what is meant.

Photo of Edward Garnier Edward Garnier Ceidwadwyr, Harborough

When the Minister answers my hon. Friend's question, will he illustrate it by telling us, for example, who owns the court buildings in the remainder of the United Kingdom? I am not sure whether the Court Service owns property. Do they belong to the Lord Chancellor's Department, or to the Lord Chancellor on behalf of the Crown? Ditto in Scotland. If he is bringing Northern Irish practice into line with that in the remainder of the United Kingdom, we would be a little less worried.

Photo of Andrew Turner Andrew Turner Ceidwadwyr, Isle of Wight

I have some questions on the implications of paragraph 13. Does the status of a servant or agent of the Crown normally carry with it immunity from prosecution or litigation? In the event of the provision having any effect on that immunity, what would be the judicial authority responsible for deciding cases in which the commission was the subject of legal action? Would it be the courts of Northern Ireland? If not, which court would it be? Knowing the small size of the judiciary of Northern Ireland, it will not be easy to find people able to sit in judgment on the commission if it is the subject of litigation.

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

Those who are used to the scale of England may find Northern Ireland and, perhaps, Scotland irritatingly small, but the fact is that, in Scotland and Northern Ireland, we have developed the ability to live with the comparatively small number of people that are there. So, for example, it is possible—something to which the hon. and learned Member for Harborough alluded—for judges in Scotland to preside over litigation that involves other judges. Judges are good at identifying any conflict of interest that disqualifies them from being involved in a case. That is part of their expertise. Every day, judges throughout small communities in Scotland, Northern Ireland and, I suspect, England and Wales, are called upon to exercise the ability to rise above the narrowness of the circumstances. No doubt, repeat offenders appear regularly before judges in comparatively small rural areas and they develop the ability to deal with each case as if the person had no previous convictions.

Members must have faith in our system of justice and believe that it can rise above petty self-interest. Where will jurisdiction lie to resolve litigation in which the Judicial Appointments Commission is involved? That will depend on the litigation. If it is contract litigation—on which it is agreed that jurisdiction should lie elsewhere—it will lie somewhere else. If the Judicial Appointments Commission is involved in litigation, that litigation will probably have to take place in Northern Ireland. I do not see any conflict in judges appointed by a process in which the Judicial

Appointments Commission played a part, as an organ of the state, presiding over that litigation. If there is any specific conflict of interest, I am sure that the judges will identify it and disqualify themselves, and other judges will be found to deal with the issue.

Photo of Andrew Turner Andrew Turner Ceidwadwyr, Isle of Wight

I appreciate the Minister's reply but I assure him that I, too, come from a fairly small community. However, the chairman of the commission is the Lord Chief Justice of Northern Ireland, who stands in the position of the Lord Chancellor vis-a-vis Northern Ireland. What is the final court of appeal—

Photo of Andrew Turner Andrew Turner Ceidwadwyr, Isle of Wight

I thank my hon. and learned Friend for that intervention. Does the case have to proceed there via a court that involves the Lord Chief Justice of Northern Ireland?

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

I am thinking of a predictable lawyer's answer, such as, ''It depends.'' It will depend on the circumstances of the individual case. I do not want to be prescriptive about the circumstances in which the Lord Chief Justice might need to play a part in litigation that involves the Judicial Appointments Commission. It will depend on lots of things, including the attitude of the other litigants, who may be content to have the issue aired in any particular court with particular judges. The issue will not keep us awake at night; there are far more important issues relating to the Judicial Appointments Commission and other parts of the justice system. I hope that I have given the hon. Member for Isle of Wight (Mr. Turner) a fair answer to his fair question.

The hon. and learned Member for Harborough asked who owns the court property. I shall write to him about that, but I fail to see the relevance of the question to the issue of the Judicial Appointments Commission. I do not think that the commission will own any of the court property. He may have been thinking of another issue, but I will undertake to write to him about the ownership of buildings in the rest of the United Kingdom and whether or not things are the same in Northern Ireland. However, nothing in this part of the Bill will affect that.

Photo of Edward Garnier Edward Garnier Ceidwadwyr, Harborough

I asked the question only because the Minister seemed to be in some confusion and I wanted to help him. Paragraph 13(2) states:

''The Commission's property is not to be regarded as property of, or held on behalf of, the Crown.''

I appreciate that the commission may not be the owner of court buildings, but it will presumably have an office.

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

I suspect that as the hon. and learned Gentleman asked that question, he realised what the answer was. The commission's property will belong to the commission alone. That is what we should be concerned with. If the commission chooses to establish an office in a court building, that office will not be its property. I am not confused. I understand the relevance of property to the Judicial Appointments Commission. If the hon. and learned Gentleman

thinks that the ownership of the courts is of some relevance and wants to satisfy himself about who owns them, I will undertake to write to him on the matter. However, with respect, I do not think that it is at all relevant.

The immunity that Crown status would attract includes immunity from prosecution and in respect of other matters involving the application of statute law. I do not have an exhaustive list of those matters—in case anybody asks—but they have grown up over the years around the Sovereign. The provision that the hon. Member for Reigate seeks to remove has been included because we consider that the new body should not attract that set of immunities.

It is extremely unusual—I have not been able to find any examples, but I am told that there may be some—to create a public body and treat it as an agent of the Crown. The Bill's provisions reflect those governing other bodies such as the Police Complaints Authority and Data Protection. All public bodies that are set up in this fashion are specifically excluded from Crown status. If they were not so excluded, provisions in relation to matters such as litigation, property law and employment law would be hindered in an inappropriate manner. That is the answer and I hope that the hon. Gentleman is satisfied and will withdraw the amendment.

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

I am grateful to the Minister for his explanation and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

I beg to move amendment No. 40, in page 74, line 38, leave out paragraph 18.

The amendment concerns the principle of devolution. If judicial appointments and the whole judicial system are to be devolved to Northern Ireland, it will be consistent for members of the Legislative Assembly not to have a role on the Judicial Appointments Commission. When those functions have been devolved by this House, the Legislative Assembly will have a role in exercising them through its direct election of the First Minister and Deputy First Minister, whose role in the judicial system will be extensive. Furthermore, it strikes me as odd that a Member of this House should be disqualified from serving on the Judicial Appointments Commission.

Let us consider the example of the hon. Member for Newry and Armagh. If my amendment were adopted, he would be disqualified by virtue of his membership of the Legislative Assembly. If, however, he ceased to be an MLA, but retained his membership of this House, I cannot think of a finer person to serve on the Judicial Appointments Commission. The hon. Gentleman would have the confidence of the whole community of Northern Ireland. As a Member of this House, he would not have a role in the judicial system, except in the most peripheral way in terms of the relationship of the Lord Chancellor with the judicial

system in Northern Ireland. It would be a pity if we were to disqualify people such as the hon. Member for Newry and Armagh from making a contribution in this way.

Photo of Des Browne Des Browne Parliamentary Under-Secretary, Northern Ireland Office, Parliamentary Secretary (Northern Ireland Office) 3:45, 31 Ionawr 2002

I understand the distinction that the hon. Member for Reigate is making, and there is an argument for his view, but it will not surprise him to learn that I do not agree with him. The schedule was drafted to extend the disqualification to Members of Parliament as well as to Members of the Legislative Assembly because, as we have heard already in our deliberations, the review explicitly states that

''there is a greater need than ever to insulate the appointment process from any possible suspicion of political influence; a way of doing this is by creating an independent appointments commission.''

That refers to independence of thought and independence from political interference.

We have gone to appropriate lengths, in drafting the schedule, to create that political independence. Although I understand the distinction between Members of the Legislative Assembly and Members of Parliament, with respect to where they are elected to sit, I have observed no difference in politics between Members of the Legislative Assembly and Northern Ireland Members of Parliament from the same party. Removing, or at least cutting a major hole in, the political independence that the review advocated, by allowing Members of Parliament on to the commission, would lead to political mischief, or at least the suspicion of it. Those appointments would not retain the confidence of the people of Northern Ireland because it would not be apparent that there was political independence.

The amendment is unacceptable and I ask the hon. Gentleman to withdraw it.

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

I do not accept the Minister's argument in the terms in which he put it. What about Members of the European Parliament or the Council of Europe? They would equally have a role to play. Members of the European Parliament might perhaps be disqualified under schedule 1 to the House of Commons Disqualification Act 1975. I do not know. However, Members of the European Parliament from other countries, such as the Irish Republic, would not be disqualified under those provisions. I simply ask for consistency. If we have a level of devolved Administration, there should be an appropriate cut-off point. I think that the appropriate point is the Legislative Assembly, which has a direct relationship to the devolved system, not to the House of Commons. It is a matter of judgment.

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

I shall not give way, if my hon. Friend will forgive me, because I do not want to press the point. The issue merits debate, and I regret that we do not have time to debate it further. It is important in relation to the responsibilities of Members of the

House of Commons within the devolved structure of the United Kingdom, and important philosophical points should come from debating it. However, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 2 agreed to.