Clause 3 - Duty of Commission to secure judiciary reflective of the community
Justice (Northern Ireland) Bill [Lords]
2:30 pm
Mr Andrew Hunter (Basingstoke, Independent Conservative)
The amendment is the first of three that I have tabled at the request and on behalf of the Democratic Unionist party. I hope that the Minister will recognise that in his reply. My place on the Committee is due to my having been nominated by the Democratic Unionist party.
The purpose of amendment No. 24 is straightforward and transparent. It seeks to address an important part of our grave concern about the Bill, as expressed on Second Reading. That concern was shared by all Northern Ireland Unionist Members and by many Conservative Members.
If the amendment were accepted, the Bill would require that:
''The selection of a person to be appointed, or recommended for appointment, to a listed judicial office . . . must be made solely on the basis of merit.''
No other consideration of any nature whatever would be taken into account—only a candidate's merit.
Sadly, nothing that the Government said on Second Reading or that the Minister said this morning significantly calms our fears on this matter. I agree with the right hon. Member for Upper Bann, who argued in earlier proceedings that the concept of ''reflective of the community'' was fundamentally flawed and impractical, and that only the qualities and qualifications of individuals should be considered when judicial appointments were made. There is a strong argument to be made that subsections (9) and (10) not only undermine and weaken the requirement of subsection (8)—that appointment should be made on the basis of merit alone—but that when put into practice, appointments ''reflective of the community'' would ultimately be incompatible with appointment on the basis of merit alone.
I agree with the Government that confidence in the justice system is essential, but I do not accept that there is any shortfall of confidence in Northern Ireland's judiciary that is worthy of mention. In short, there is no need for the provisions contained in lines 24 to 38; those provisions are more likely to undermine confidence in the judiciary and the judicial system than to promote it. Where is the evidence to
support the allegation that Northern Ireland's judicial system, and the judges that are an integral part of it, are unfair or biased?
Although I had differences of opinion with Lord Mayhew when he was Attorney-General and Secretary of State for Northern Ireland, I accept the view that he put forward when the Bill was debated in another place. He stated that he did not recall
''any serious lack of public confidence in the judiciary ever manifesting itself.''
He commented that
''the judiciary of Northern Ireland, appointed as it has been by the Lord Chancellor, has earned a superb reputation for its fairness and impartiality, to say nothing of its courage and dedication to the rule of law.''
He continued that there was
''no significant or telling imbalance'',
that
''members were appointed . . . solely on merit'',
and that
''marginally more appointments were made from those with Catholic backgrounds''.
He argued that
''public confidence in the judiciary has been deservedly very high.''—[Official Report, House of Lords, 16 December 2003; Vol. 655, c. 1107–08.]
The Committee is aware that the concept of ''reflective of the community'' has replaced ''representative of the community'', and that is without doubt a step in the right direction. Nevertheless, the concept of ''reflective of the community'' has the potential of moving us towards the mistaken and fallacious 50:50 equality of outcome approach, especially when one bears in mind the genesis of the Bill: the Hillsborough declaration in March 2003. It is hard to avoid the conclusion that the Government are once again trying to appease the provisional republican movement and its fellow travellers. Some time ago, the Government fell into the trap that once one starts paying the blackmailer, he comes back for more. This aspect of the Bill is another classic illustration of that.
The equality of outcome approach was not sanctioned by the Belfast agreement, so that does not provide justification for it. It is not what the Equality Commission is charged to achieve, nor is it what is meant by human rights instruments when the commission talks of equality. In those cases, the reference to equality means equality of opportunity and the requirement that individuals are treated fairly. That is already the case with judicial appointments and no additional legislation is required.
In the Minister's winding-up speech on Second Reading, one statement particularly caught my attention. He asserted:
''The criminal justice review, which the Bill builds on, is about modernising the system of appointments in line with the changing needs of society.''—[Official Report, 10 March 2004; Vol. 418, c. 1616.]
I suggest that those words encapsulate a fundamental difference of opinion between the signatories of the amendment and the Government. The Minister argues
that the judicial system must be modernised to keep it in line with the ''changing needs of society'', but what does he mean by that? What objective criteria or mechanisms are there for determining the changing needs of society? How are the alleged changes to be qualified and quantified, and by whom? Any attempt to do that is an exercise in subjective judgment. Moreover, even if we could agree about the changing needs of society, they are by definition transient and an unreliable basis for making judicial appointments.
I take the view that, in reality, the qualities required for appointment to judicial office are timeless; they should be unaffected by transient social changes.
The merit only grounds for judicial appointment should not be debased in pursuit of the idol of political correctness. It is deeply worrying that the Belfast agreement's institutionalised sectarianism might be extended to judicial appointments, albeit through the back door.