We need your support to keep TheyWorkForYou running and make sure people across the UK can continue to hold their elected representatives to account.

Donate to our crowdfunder

Clause 2 - Membership of the Commission

Justice (Northern Ireland) Bill [Lords] – in a Public Bill Committee at 10:00 am on 25th March 2004.

Alert me about debates like this

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General 10:00 am, 25th March 2004

I beg to move amendment No. 10, in

clause 2, page 1, line 9, at beginning insert—

'( ) In section 3 of the 2002 Act (makeup of the Commission)

(a) in subsection 5(a) for 'five', substitute 'six' and

(b) in subsection 5(c), for 'five', substitute 'four'.

The amendment relates to the composition of the Judicial Appointments Commission. The matter was considered in the other place, where it was argued that it would be wrong to have a majority of lay members on the commission; that the original justification for the structure in the 2002 Act was that it is a political necessity as part of devolution; and that as devolution is not taking place, there is no reason at present to proceed. I heartily endorse those views.

There is no reason why there should be a lay majority on the commission and every reason why the judiciary should be in the majority. A major concern in relation to the judiciary, here and in Northern Ireland, is that it should as far as possible be seen to be wholly depoliticised. In recent years, under the current appointment system, it has rarely, if ever, been suggested that the Northern Ireland judiciary is politically biased. However, there is a real possibility of problems if the composition that the Government propose is maintained. In the other place, my noble Friend Lord Glentoran made the point that it is necessary to provide reassurance to the Ulster Unionist community that the legislation is not simply another device to undermine the Union and the existing structure. In those circumstances, I believe that the amendment has considerable merit as it would be much more sensible to ensure that there is a judicial majority in the appointments commission. I await the Minister's response.

Photo of Mr Andrew Hunter Mr Andrew Hunter Independent Conservative, Basingstoke

I shall be equally brief, but I want to put on record concerns about the concept of ''reflective of the community''. On Second Reading, several hon.

Members made the point that the experience of the Unionist community in Northern Ireland does not lead it to respond favourably, on first hearing, to such expressions as ''reflective of the community''. One need only look at the composition and working of the Parades Commission, the Northern Ireland Human Rights Commission and the former Police Authority for Northern Ireland as well as recent appointments to the Independent Monitoring Commission. Such instances give rise to grave concern among Unionists as to the true purpose and intent of concepts such as ''reflective of the community''.

What precisely is meant by ''reflective of the community''? It is now a fact of life that Sinn Fein is the largest non-Unionist party in the Province. Sinn Fein remains inextricably linked with—indivisible from—the IRA. Is it seriously being suggested that a commission should be ''reflective of the community'' if that community includes representatives of a political movement that has total disregard for the judicial process?

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office

As the hon. Member for Beaconsfield said, the amendment would increase the number of judicial members and decrease the number of lay members of the new Judicial Appointments Commission. However, he then commented on the balance between lay members and those with a legal background. The commission will have two members from the legal profession: a barrister nominated by the General Council of the Bar and a solicitor nominated by the Law Society. Moreover, the Lord Chief Justice is the chairman of the commission.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

Perhaps I expressed myself badly. I used the word ''lay'', when I should have used ''non-judicial''.

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office

I can only be guided by what the hon. Gentleman says, in the same way that I can be guided only by the amendments he tables.

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office

It is probably easier to read his mind than the mind of the hon. Member for Blaby.

There was debate on the matter when the 2002 Act was going through the House and the House of Lords. The Bill does not alter the composition of the commission, nor, if I may say so to the hon. Member for Basingstoke, does this relate to the question of reflectivity, which we will deal with later.

The criminal justice review tried to strike a careful balance in terms of the commission's membership. We thought it right to identify the useful contribution that lay members could make to the appointments process—for example, the Judicial Appointments Board for Scotland has a lay chair. I believe that we have the right balance, and I ask the hon. Member for Beaconsfield to withdraw the amendment.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General 10:15 am, 25th March 2004

I shall not withdraw the amendment; I shall test the opinion of the Committee and press it to a vote. The debate in the Lords on the matter, albeit brief, highlighted concerns, which were expressed from a number of quarters, that the composition of the

commission makes no sense and that it would be better to ensure greater judicial involvement.

My assessment of how Northern Ireland works, as limited as that might be, is that there is much to be commended in the view that a judicial majority is worthwhile, and I would like to register my vote on that.

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 13.

Division number 1 Adults Abused in Childhood — Clause 2 - Membership of the Commission

Aye: 6 MPs

No: 13 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Photo of Joe Benton Joe Benton Labour, Bootle

With this it will be convenient to discuss the following amendments: No. 30, in

clause 2, page 2, line 1, leave out from 'Chancellor' to end of line 7 and insert

'to ensure those persons appointed to be lay members must so far as possible have a sophisticated understanding of legal issues as well as proven experience in selection procedure.'.

No. 2, in

clause 2, page 2, line 4, leave out 'their' and insert 'his'.

No. 3, in

clause 2, page 2, line 7, at end insert—

'(9) Those responsible for making appointments under subsection (8) shall carry out their duties with due regard to the need to promote equality of opportunity in relation to—

(a) religion and political opinion;

(b) gender;

(c) race;

(d) disability;

(e) age;

(f) marital status;

(g) dependants; and

(h) sexual orientation.'.

No. 49, in

clause 2, page 2, line 7, at end insert

'At the beginning of subsection 8 of section 3 of the 2002 Act, insert ''The lay members should be selected on the basis of the additional value they would bring to the Commission's deliberation, including such qualities as experience of selection processes, the court users' perspective and the utility to assess the personal qualities of candidates.''.'.

No. 50, in

clause 2, page 2, line 7, at end insert—

'(1) In Schedule 2 to the 2002 Act in paragraph 11 (Delegation) for sub-sub-paragraph (1) leave out from ''functions'' to end and insert ''except the function of selecting a person for appointment, or recommendation for appointment, to an office, to any of its committees.''.

(2) In Schedule 2 to the 2002 Act, leave out paragraph 12.'.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

I shall speak to amendments Nos. 1 to 3, which stand in my name, although I note that I have the support of the right hon. Member for Upper Bann on amendment No. 1.

These are probing amendments, the genesis of which lies in my consideration of the explanatory notes. They are helpful, but slightly misleading in stating:

''The Criminal Justice Review recommended that the Commission should be representative of the community in Northern Ireland (recommendation 79, paragraph 6.104).''

When one reads that paragraph, it becomes apparent that the review recommended that the lay membership of the commission be representative of the community as a whole. The Government proposals go beyond that, as they would make the entire commission representative. Amendments Nos. 1 and 2 would restrict the duties under subsection (1) to the Lord Chancellor and restrict the ambit to lay members of the commission, so that only the Lord Chancellor could appoint those members.

As the Government have taken a different position from that outlined in the criminal justice review, I thought it appropriate to table these amendments to find out why. In principle, I have no objection to the whole commission being reflective of the community, but I wonder whether that is slightly ambitious when one considers the nature of people who become lawyers. Most people will have heard my declarations of interest in that regard.

Photo of Mr Andrew Hunter Mr Andrew Hunter Independent Conservative, Basingstoke

I appreciate that the hon. Gentleman's amendments are probing, but will he clarify one aspect of his thinking on amendment No. 3(9)(a)? Before any restoration of devolved government, which has been suspended due to ongoing violence and non-decommissioning, would he envisage Sinn Fein being entitled by statute to places on the commission?

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

The hon. Gentleman raises an important point, which I could probably play around with for 15 or 20 minutes without drawing breath. However, I shall resist that temptation, particularly because the Independent Monitoring Commission report will be published in the next couple of weeks and anything I say about that today will probably be irrelevant after its publication.

Paragraph 6.104 of the criminal justice review contains an express reference to the absence of political input in the appointments process:

''In the Northern Ireland context it is important to keep any hint of political input out of the appointments process. The lay members would be selected on the basis of the additional value which they would bring to the Commission's deliberations, including such qualities as experience of selection processes, the court users' perspective and the ability to assess the personal qualities of candidates.''

Appointing people because they are members of Sinn Fein, or indeed of any political party, does not seem to

have been part of the Government's thinking and I am content to go along with that.

In tabling amendment No. 3, I hoped that a very small part of a very small community—legal professionals in Northern Ireland—could be reflective of the wider community. Perhaps that is slightly ambitious, but I am more ambitious in that regard than the Government, who have not defined the term ''reflective of the community''. If the wording sounds familiar, there is a reason for that. It is more or less directly lifted from paragraph 3 of the section of the Good Friday agreement entitled ''Rights, Safeguards and Equality of Opportunity'', which states:

''Subject to the outcome of public consultation underway, the British Government intends, as a particular priority, to create a statutory obligation on public authorities in Northern Ireland to carry out all their functions with due regard to the need to promote equality of opportunity in relation to religion and political opinion; gender; race; disability; age; marital status; dependants; and sexual orientation.''

If that is good enough for the ''Rights, Safeguards and Equality of Opportunity'' section of the Good Friday agreement, it is good enough for the Bill. There would be a workable framework to define a commission that is ''reflective of the wider community''.

For the interest of the Committee, we have established from the 2001 census that 40.3 per cent. of the population of Northern Ireland claim to be Catholic, 39.5 Protestant and 6.1 per cent. other Christian. I am not sure what the theology of ''other Christian''—neither Roman Catholic nor Protestant—is, but we shall pass on that. Other religions are 0.3 per cent. and none or not stated are 13.9 per cent. By gender, 48.7 per cent. of the population are male and 51.3 per cent. female. By ethnicity, 99.2 per cent. are white, and 0.8 per cent. non-white.

By age, the population are roughly the same as the rest of the country—26.8 per cent. under 18, about 60 per cent. aged 18 to 64 and 13.3 per cent. 65 years and older. The information is available for those who want to check the Government's performance in establishing a commission that reflects the wider community, if that is what they choose to do.

Photo of Desmond Swayne Desmond Swayne Conservative, New Forest West

I find that reasoning somewhat bizarre. To be genuinely reflective of the community, according to the minutiae that the hon. Gentleman defines in his amendment, the key question is how many male Catholics are disabled. Multiplying each minority by each minority will give us a genuinely reflective view in the way that he wants, but I do not believe that those statistics exist or that the quest is worth pursuing.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

If the hon. Gentleman believes that such reflective composition is not worth pursuing, I feel sorry for him, although I am not particularly surprised by what he says. He is perhaps a little careless in his use of language and he might consider the difference between ''reflective'' and ''representative''. That is a significant point. We are not proposing a commission that is entirely representative in some statistical way. My point is that the information is already in the public domain,

and it is possible, on an objective measure, to establish whether the commission will be considered reflective.

The same themes are pursued in the amendments tabled by the right hon. Member for Upper Bann, albeit in a different way, and I shall leave him to speak to those. I am particularly intrigued by the formulation in amendment No. 30, although I understand its genesis. I would love to see lay members with

''a sophisticated understanding of legal issues as well as proven experience in selection procedure'',

but I fear that that might exclude a lot of lawyers.

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party

I rise to support the hon. Member for Orkney and Shetland (Mr. Carmichael) on amendment No. 1 and to speak to amendments Nos. 30, 49 and 50. Clause 2, and subsection (1) in particular, changes the commission from being representative of the community, as provided in the 2002 Act, to being reflective. I am interested in the hon. Gentleman's point, which he rightly made, that ''reflective'' is less rigid than ''representative'', and that consequently any arguments for numerical relationships and proportions are less strong if ''reflective'' is used. That point is right and well made.

I also endorse the hon. Gentleman's point that although the Minister has often prayed in aid the criminal justice review and talked about how the Government are implementing it, clause 2 is a significant departure from the review's recommendations. The hon. Gentleman is right that the review is clear about the fact that issues in respect of people appointed to the Judicial Appointments Commission being representative or reflective should apply only to the lay members, but the Bill applies them to the judicial and other members as well. That is a significant shift and a departure from the criminal justice review. It is important to note that.

I have to say to the Minister that it is no part of the function of a judiciary to be representative of the community. Oh yes, it is a good thing for the community to have confidence in the judiciary, but the judiciary should be appointed, as the Bill makes clear elsewhere, solely on merit. The function of the judiciary is to adjudicate on issues that come before it, so the important thing for the judiciary is to have knowledge of the law and good judgment in applying it. Being representative is not the point; it is not relevant. Indeed, to talk in terms of the representativeness of the judiciary is to make a grave mistake.

This country does not have an elected judiciary, although the Labour party seems, in many ways, to be imitating all forms of US political action and social and legal structure. The reforms that have been touched on so far seem to have been drawn quickly from the American experience and sketched out on the back of an envelope with no real consideration, but this matter is worth consideration. We do not have an elected judiciary. In our system, it is not part of the function of the judiciary to be representative. Its members are there to be impartial and skilled.

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office 10:30 am, 25th March 2004

The right hon. Gentleman will have noted that, although the criminal justice review used ''representative'', the Bill says ''reflective''. Does he think that the judiciary should not be reflective of the community?

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party

I repeat my point: the function of the judiciary is to judge impartially issues that come before it, to apply the law and to do so exercising good judgment. It is not part of its function to be representative. Even using the weaker term ''reflective'' does not allow us to depart from that basic principle. It is a good thing for the public to have confidence in their judiciary, and part of that confidence should derive from the belief that the judiciary is applying the law in a skilled and impartial way. Other considerations are not appropriate. I note that the Minister was unable to offer any reason why, on this matter, the Government have decided to go far outside the provisions of the criminal justice review in this significant way.

That is why I tabled the amendment, which would remove the words that in effect extend to all members of the Judicial Appointments Commission the duty to be reflective. How on earth will the duty for the commission as a whole—lay and judicial members—to be reflective of the community be exercised in practice? It is worth reflecting on the commission's composition. Five members are appointed by the Lord Chief Justice. A barrister is nominated by the General Council of the Bar of Northern Ireland, and a solicitor is nominated by the Law Society of Northern Ireland. Five persons, originally to be appointed by the First and Deputy First Ministers, are now to be appointed by the Lord Chancellor.

Four different parties—two persons and two bodies—therefore make appointments: two appoint five members each and the other two appoint one each. Those different parties are to produce a result that, as a whole, is reflective of the community, but how on earth will that be done in practice? How will the Law Society, in making its one appointment, carry out its duty such that the commission as a whole is reflective of society in Northern Ireland? In practice, that is impossible to attain; it is impossible for the Law Society to do this.

Does the Minister envisage the two persons and two bodies getting together and dividing out the members? Perhaps they will take the list suggested by the hon. Member for Orkney and Shetland. One will say, ''Well, I'll go and look for an ethnic minority representative.'' Someone else will look for a man and someone else will look for a woman. That simply is not practical. I wonder whether any real thought has been given to this, but considering the political origin of the provisions and the persons likely to have contributed to their construction, I am not surprised that little thought was given to them and that they are impracticable. The point behind amendment No. 1 is that it is inappropriate, and in any event impracticable, to apply the duty to the judicial members. In parenthesis, one can add that, as the hon. Member for Basingstoke said, our experience of this is not good.

Paragraph 6.104 of the criminal justice review, part of which was quoted by the hon. Member for Orkney and Shetland, continues:

''The lay members of the Commission should be drawn from both sides of the community, including both men and women. This could be achieved through a legislative provision along the lines of section 68(3) of the Northern Ireland Act 1998 which provides that the Secretary of State should, so far as practicable, secure that the Northern Ireland Human Rights Commission is representative of the community in Northern Ireland.''

The hon. Member for Basingstoke will know that, of the various bodies referred to, perhaps the most risible appointments were those to the Human Rights Commission. The idea that the commission—in its first appointments or as it now exists—has ever represented the community of Northern Ireland is a bad joke. I remember the Secretary of State being unable to justify how the appointments to the commission reflected the political balance in the community in Northern Ireland. The majority political viewpoint in Northern Ireland was simply not represented on the commission. If that is how that provision operated, one wonders how this one will operate.

Amendments Nos. 30 and 49 are two different attempts to deal with the appointment of lay members. I say to the hon. Member for Orkney and Shetland that if I had to choose between the two efforts, I would prefer amendment No. 49. In this as in other matters, second thoughts are often better thoughts. It would be nice to think that we could find people who meet the criteria in amendment No. 30, but on second thoughts I prefer the terms in amendment No. 49. The hon. Gentleman will know—he read it out earlier—that this is the exact language of the criminal justice review.

I emphasise to the Minister that we should include those or similar words in the legislation. The reason for that lies in the fact that, in the event of devolution, the five lay members will be appointed by the First and Deputy First Ministers. The Minister should reflect on the comments made on Second Reading, particularly the view that all decisions are political. We must bear that attitude in mind. Some people in Northern Ireland regard everything as political. If someone of that cast of mind occupies the position of First or Deputy First Minister, they will approach lay appointments with political considerations in mind.

No names, no pack drill, but the Minister will see clearly a view expressed on Second Reading by one of the Northern Ireland Members that all appointments are political. That is the huge danger of creating this body. If the First Minister or the Deputy First Minister considers the appointment of lay members political, judicial appointments will be polluted by political considerations. That is not the criminal justice review's intention, which it is important to carry out.

Photo of Nick Palmer Nick Palmer Labour, Broxtowe

Underlying the right hon. Gentleman's concerns on this and the previous clause is the assumption that lay members might be politically motivated and might overrule judicial members to appoint someone not as unbiased as one would wish. Does he not agree that because of the narrow majority of lay members it would require an almost unique cross-party agreement between lay members from all

parts of the Northern Ireland political spectrum to overrule the view of the judicial members?

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party

The hon. Gentleman could have made that point even more strongly. As I read it there are five lay members of a commission of 13. They are therefore in the minority. Clearly they could never overrule a decision, but where a committee is making a collective decision, any person on that committee can influence that choice. I do not imagine that any member of the commission would explicitly state political factors in favour of appointments—or I hope that members of the commission would not do so—but I will not go back into history. I have already been chided by the Minister for referring to 1920.

If 13 people are choosing between various persons and are doing so by a majority decision, one, two or three members could sway that vote. They could do so for unexpressed political considerations if the persons appointed were of a political character. I referred to the comments made on Second Reading, which I believe show that some lay appointments would be made for political considerations. That is the danger to which this provision of being representative/reflective opens the door.

If some people are appointed for political considerations, it is likely that they will allow those political considerations to condition their approach, which might sway the appointment that is made. That is a huge danger. It is part of the reason why I have come to the conclusion that this concept, either generally or more particularly in Northern Ireland, is bad and will lead to political considerations being introduced to judicial appointments. Some hon. Members may be content with that. I am not.

If we have this commission—I would rather that we did not—we should ensure, in so far as we can, that the lay members are not of a political character. I do not think that the criminal justice review intended that they should be. That is why it is highly desirable to include in the Bill the following words from the review:

''The lay members would be selected on the basis of the additional value which they would bring to the Commission's deliberations, including such qualities as experience of selection processes, the court users' perspective and the utility to assess the personal qualities of candidates.''

Amendment No. 50 is extremely important, particularly in the light of the comments that I have made. It relates to paragraphs 11 and 12 of schedule 2 to the 2002 Act on the operation of a Judicial Appointments Commission and delegation in particular. Paragraph 11(1) states:

''The Commission may delegate any of its functions (to such extent as it determines) to any of its committees.''

The committee can therefore exercise those functions; this is not simply a question of it considering the matter and reporting back.

Furthermore, paragraph 11(2) states:

''A committee to which a function has been delegated may further delegate it (to such extent as it determines) to a sub-committee.''

We are moving further away from the 13-member commission. A sub-committee could exercise a

function, not just consider a matter and make a report with recommendations to the full commission, but actually delegate that function.

Furthermore—this is where the real evil lies—paragraph 12 states:

''If the function of selecting a person for appointment, or recommendation for appointment, to an office is delegated to a committee or sub-committee,''—

it is clear that the committee or sub-committee can make the appointment without reference to the commission—

''the committee or sub-committee must include a member of the Commission and, unless he is a lay member, a person who is eligible to be a lay member.''

One can therefore delegate to a committee or sub-committee that contains persons who are not members of the commission, and the only requirement for commission involvement is down to one person if it is a lay member. There could thus be a situation in which the commission delegates its functions to a committee that includes people who are not members of the commission, but nothing is said about who the other members of the committee should be. We are talking about the commission and how it is made up—appointed by the Lord Chief Justice, the Bar Council, the Law Society and the Lord Chancellor—and we have said that the commission must be reflective or representative of the community, but the functions can be delegated to a committee, and nothing is said about the other members of the committee, who could be anybody.

There is a huge error in the proposal, and it is open to massive abuse. It is technically open to a sub-committee that consists of a lay member, plus other persons who are not members of the commission, to make an appointment. This is a very bad provision, and I want the Minister to think carefully about it. The amendment would considerably confine the proposal.

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office 10:45 am, 25th March 2004

May I clarify the right hon. Gentleman's point? Paragraph 11(1) puts the ability to delegate in the hands of the commission, so any decision to delegate to a sub-committee would be a decision taken by the commission. It is not an external appointment of sub-committees but the commission itself deciding how to run its own business. Why does he have difficulty with that?

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party

Because very important functions are given to the commission, especially with regard to appointments. What is the point of having a Judicial Appointments Commission if that commission is authorised to delegate its function of making appointments? The whole concept is wrong. Why are there detailed provisions about the make-up of the commission and the character of people on it if a little paragraph in a schedule gives the commission the capacity to delegate the function to what is effectively another body?

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office

Because it is the ability of the commission to make such a decision, especially when it is responsible for about a thousand posts in Northern Ireland, and not just in the court and the High Court—it goes wider than that, and even includes tribunals, as the right hon. Gentleman

knows. For example, it may be argued that to have the president of a tribunal engaged in the appointment of tribunal members is desirable practice. However, I return to the point that the delegation of the powers is in the hands not of Ministers but of the commission, which can therefore sensibly manage its own business. I have confidence in the commission to do that.

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party

I come back to the huge scope of paragraphs 11 and 12. The Minister argues that there might be occasions on which it is sensible to have a committee or sub-committee. Perhaps, but why delegate the entire function? Once a function is delegated, the commission is dependent on the commission members in the committee or sub-committee for information about what is going on. The link can get so tenuous as to be down to a single person, particularly if that person is a lay member who reads into the provisions the justified concern that I have expressed about how they might be appointed post-devolution. The provision is dangerous.

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office

To clarify the position, I repeat that the commission itself will delegate power and that a majority of its members are from the legal profession in one form or another. However, it seems to me that if responsibility for appointment was delegated, but those who had been so delegated had to report back to a body that could overturn their decisions, there could well be an absence of due process. Those who have been appointed on the sub-committee will have interviewed the candidates and formed a judgment of their qualities. To have that decision overridden by those in the commission who were not involved in the interview process would cause difficulties in the commission's conduct. Those who went through the initial process might also have a legitimate cause for complaint.

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party

The Minister is arguing against himself. There is a huge contradiction in his argument. He started by saying that the creation of the sub-committee was the work of the commission and that we should trust the commission to carry out its functions. He then said that it would be wrong for a committee of perhaps only one person, to which the power to make certain appointments had been delegated, to report back to the commission as a whole, so that the other 12 might consider any decision. He thinks that that would be a bad thing. Either he trusts the commission or he does not. If he trusts the commission enough to enable it to delegate functions in that way, why does he not trust it to oversee those functions? There is a huge contradiction in his approach.

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office

I think not. If the commission thought that process had not been correctly conducted, it might be appropriate for it to do what the right hon. Gentleman describes. However, it has delegated those powers because it has confidence in the persons whom it has appointed to the sub-committee to make a judgment based on the interview, the information and the impression that they form of the candidates. The issue is not the integrity or the judgment of any member of the commission. The important point is

that those members of the sub-committee have been able to avail themselves of all the facts. The ability to delegate the relevant function to the sub-committee would indicate that confidence. I do not see that that is an abuse of process.

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party

Again, I return to the fact that the Minister is talking about the confidence that he implies he would have in the non-commission members, who could easily form a majority of a committee or sub-committee. He implies that they are to be trusted enough not to have what they are doing overseen by the rest of the commission.

Who are these people? We do not know. They could be anybody. The duty that the commission should be reflective of the community that the clause provides for does not apply to the committee or the sub-committee—that is, unless the Minister wants to introduce an amendment. Why is there no provision about the character of the appointments? That is not a matter that the criminal justice review appears to have contemplated, although I stand to be corrected—and there are some here who are in a position to do so. However, the commission can delegate any of its functions to committees. That needs to be thought about carefully. We need to receive some information about that.

With respect, the Minister has provided no information at all. The delegation includes the core activity of the commission, namely making appointments. Surely we should know more about this. We are touching on the core matter—one that I consider of huge importance. He may be able to give more detailed comments later, and in the absence of some real explanation of this important issue, which some hon. Members might consider worth a vote, my inclination would be not to press it to a Division now. I want to give him a chance to return to it.

I should be anxious to pursue the matter on Report, if we get to Report, because it appears that a little paragraph tucked into the provisions will open up a huge hole in the operation of the commission. In view of the political and religious considerations, there is a need for something to be spelled out in detail. The Bill does not include that, and unless I have overlooked it, neither does any of the material that we have before us.

Photo of Mr Andrew Hunter Mr Andrew Hunter Independent Conservative, Basingstoke

I am grateful to the right hon. Gentleman for raising the issues covered by amendment No. 50, which I had not detected. It reveals a huge hole, as he said. The question is of the utmost seriousness, and the Government must surely pay attention to it. My initial reaction is that it is wholly unacceptable that, while the Government emphasise the idea of the commission as a whole being ''reflective of the community'', it should be possible for the constitution of a committee or sub-committee not to reflect that principle at all. That involves more than a tension. It creates a potential contradiction, and it is a point that needs to be seriously attended to.

I fully support the right hon. Gentleman on amendments Nos. 30 and 49. I share his deep concern about the concept of being ''reflective of the

community''. It is fundamentally flawed and impractical to implement. As the amendments suggest, the only consideration should be the quality and qualifications of the people concerned.

As to the probing amendments tabled by the hon. Member for Orkney and Shetland, I thank him for his reply to my intervention about political requirements, and how far that matter should be extended. I understand his wish to sit on the fence for the time being, so we shall return to that later.

However, will the Minister, in responding to those probing amendments, deal with another issue that perplexes me? Let us suppose that the Bill is enacted and the Lord Chancellor and the other people responsible for making nominations set about trying to secure membership of the commission that is reflective of the community. What will happen if someone is disaffected or disgruntled? That could happen if an applicant was overlooked. I apologise if I am guilty of an oversight, but the Bill appears to me not to include any provision for that.

To whom should the disgruntled person bring a case? Should it be the Lord Chancellor, the very commission that rejected his application, or the Secretary of State for Northern Ireland? Are there, or should not there be, established procedures for such a person to follow? Who is to hold the Lord Chancellor responsible for ensuring that the commission is reflective of the community?

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General 11:00 am, 25th March 2004

This has been a lengthy debate, and I do not want to take up too much more of the Committee's time. Amendment No. 1 was the key amendment, but we have rather wandered away from the central issue, which the hon. Member for Orkney and Shetland very cogently explained.

The 2002 Act did not provide for judicial members of the Judicial Appointments Commission to reflect the community as a whole, but the Bill does. When the matter was considered in another place, various points were made about how difficult it is to find the right people to sit on the commission, given the small pool of judges from which candidates can be drawn. It is slightly strange, therefore, that we should introduce to the Bill a measure that provides—the Minister will correct me if I am wrong—for judicial members to be bracketed according to how they might reflect the wider community.

As the Minister knows, the Opposition support the principle that the judiciary should reflect the community as a whole, although we also emphasise that judges must be appointed on merit. Once judges are so appointed, when does one end the scrutiny of the commission's composition? Must every sub-committee reflect the community as a whole? That is the road down which the Government have chosen to go.

When members of the judiciary are being chosen from the very small pool of available talent to sit on the commission, it appears that the Government now think it appropriate that their religious background—

that is what we are talking about—should be one of the factors considered. That bothers me.

I realise that circumstances in Northern Ireland are unusual, and heaven knows we have introduced enough legislation over the past few years to try to accommodate that, including setting up a system of devolved government of the most bizarre kind. I have always accepted it, given that it may be the only way forward, but the way it operates is, indeed, bizarre. This is my point: having chosen people to be judges—therefore, the assumption is that they are capable of discharging their functions without fear or favour and without bias—are we then to say that those who will sit on the Judicial Appointments Commission must be vetted for external appearances rather than on the basis of their judgment or whether they can make a proper contribution to how the commission operates? It bothers me that we are doing that.

We are breaking down the scrutiny of who is or is not to be appointed almost to the point of absurdity. I can see the force of the argument when it comes to lay representation, because that will be a highly politicised issue, but I ask the Minister to think carefully about taking the same approach with the judiciary.

I think that there is a majority of Roman Catholic judges in the High Court in Northern Ireland. I may be wrong about that, although I see that the right hon. Member for Upper Bann is nodding. I must say that I am totally ignorant of the religious affiliation of senior judges in Northern Ireland, just as I have not the slightest clue about the affiliations of judges in England. That is as it should be. Are we really to say that someone who would be right for appointment to the commission because he has taken a great interest in the recruitment of judges and in the professional advancement of those in the solicitors' profession and those at the Bar could not be appointed because the balance meant that the commission needed either a Protestant or Catholic? That would be most unfortunate.

It may be a distant aim, but we should be striving for a day in Northern Ireland when the question of people's religious affiliation is, as it should be, a total irrelevance. Then we could get rid of the complex legislative structure that tries to provide balance. If we cannot even make a start with those who have passed the scrutiny test in becoming judges in the first place, I despair. This troubles me, and I believe that amendment No. 1 has a great deal of force.

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office

There are several amendments and several issues to engage with. Amendment No. 1 would remove the duty to secure a reflective Judicial Appointments Commission from those responsible for making nominations to it—the Lord Chief Justice, the Bar Council and the Law Society. As the hon. Member for Orkney and Shetland rightly pointed out, amendment No. 2 is consequential.

Clause 2(1) will amend the 2002 Act to provide that the Judicial Appointments Commission as a whole should be, as far as it practicable, reflective of the community in Northern Ireland. Notwithstanding the commission's ability to delegate functions and roles to committees and sub-committees, which we have just

debated at length, it is still a commission as a whole. We must consider the question whether the burden of reflectiveness should fall on the lay membership or on the commission in its entirety.

The provision requires the commission as a whole to be reflective of the community. Those who have the power to nominate members will have to play their part in working towards that objective, and it is not enough to require the Lord Chancellor alone to address reflectiveness when he does not have responsibility for appointments to the commission. Accordingly, I ask for amendments Nos. 1 and 2 not to be pressed.

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party

Before the Minister concludes on amendment No. 1, will he tackle my practical question on how the other bodies—the Bar Council, the Law Society and the Lord Chief Justice—will fulfil the duty that he is imposing on them? That is particularly important for the Bar Council and the Law Society, which each make only one appointment.

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office

I understand what the right hon. Gentleman says, but I again stress the point, which he has graciously accepted, that ''reflective'' is less prescriptive than ''representative''. We have moved away from the review in that regard. I accept that the objective will require those making nominations to consider arrangements between themselves on how this might be achieved, notwithstanding the fact that they must also consider appointments on merit. I understand that there are possible tensions between the two principles, but they are both extremely important.

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party

The Minister says that the bodies should consider arrangements. What arrangements, and how will they be taken into consideration? I refer again to the Bar Council and the Law Society, each of which makes only one appointment. What arrangements could be made with regard to those two bodies?

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office

Those bodies might undertake collective consideration or communicate with each other about whether, consistent with principles of appointment on merit, they can also achieve reflectiveness in the commission. I am not saying that this would be the outcome, but I am sure that the right hon. Gentleman concedes that it would be undesirable if the commission was completely unreflective of the community in Northern Ireland.

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party

I thank the Minister for giving way again, because I want to probe his thinking further. He says that the bodies might communicate with each other. How will they do that and what will they say? Will there be an arrangement such as that which pertains between the Law Society and the Bar, where they get together and the Law Society says, ''We'll appoint a woman solicitor if you appoint a male barrister.''? Is that the arrangement that the Minister is thinking of? If there was an arrangement of that nature, each body would individually be guilty of discrimination, because it would be making an appointment on the ground of gender. Those bodies

will make only the one appointment. I ask the Minister again: what arrangements will there be and how will they be legal?

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office

Again, from the point of view of the commission, and lawfully trying to achieve a reflective commission, I keep coming back to whether the right hon. Gentleman thinks it would be desirable to have a completely unreflective commission. In the same way, we may consider the parallel between the laws of chance and the laws of probability.

The right hon. Gentleman takes the example of the involvement of women in the law. I fully understand that, historically, the legal profession has contained a high percentage of males and that a limited number of women moved up through it. As the number of women engaging in the legal profession has increased, we would think it slightly odd if, for example—I am in no way suggesting that this is the exact situation—that was not reflected in appointments as people move up through the system.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

Surely, by definition, it is accepted that the non-lay appointments are not going to be representative. That is the reason for having the lay representatives on the commission.

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office

There is also the matter of considering the commission as a whole to try to make it reflective. Reflective is the important term. We must recognise that we may be talking about a process over time, and that these are the aspirations and objectives that we are working towards. The principles are consistent. The hon. Gentleman, on reflection, might even consider that, from a Liberal Democrat point of view, the objective is desirable.

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party

I do not want to labour the point as it has already been made, but I have just one more request to make of the Minister. Will he please think about this matter and consult with whomever he considers appropriate? Will he also undertake to give either the Committee or the House on Report some indication of what arrangements he has in mind and how they will operate in practice? I refer to the example given earlier. Some arrangements that might naturally come to mind would be illegal and would involve discrimination contrary to legislation. I do not expect the Minister to answer that point in detail now, but perhaps he will come back on Report and say what arrangements he has in mind.

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office

I certainly give the right hon. Gentleman that undertaking. The requirement is for the commission to be reflective

''so far as is practicable''.

We do not believe that that would lead to discriminating unlawfully. However, I assure him that I will reflect further on the points that he has raised.

I will return to amendment No. 3 shortly. Amendment No. 30 would require that the First Minister and Deputy First Minister must, as far as possible, ensure that lay members of the commission

''have a sophisticated understanding of legal issues as well as proven experience in selection procedure.''

The amendment would also remove the requirement that the composition of the commission, as far as reasonably practicable, be

''reflective of the community in Northern Ireland.''

Amendment No. 49 would ensure that lay members are

''selected on the basis of the additional value they would bring to the Commission's deliberation''.

It describes qualities such as

''experience of selection processes, the court users' perspective''

and the ability to

''assess the personal qualities of candidates.''

We might have to define ''the court users' perspective'' carefully in that context.

I appreciate hon. Members' concern that the lay members should bring valuable experience to the commission. We obviously want individuals who can make real and meaningful contributions. The qualities set out in both amendments are laudable. Indeed, we hope that lay members could bring such qualities to the commission, but we do not think it necessary to specify in primary legislation what those desirable qualities would be.

I am sure that hon. Members agree that the matter would be best dealt with administratively. Accordingly, I urge that those amendments should not be pressed.

Amendment No. 3 would make specific the matters to be regarded when seeking to secure a commission that is reflective of the community. It is helpful to think about what is meant by the term ''reflective'', and no doubt many of the matters listed in the amendment are relevant to that issue. Having said that, we have always made it clear that political opinion is not a factor in the judicial appointments process, and we do not propose to consider it in relation to appointments to the commission.

We hope that members of the commission will be reflective of the community in terms of their community background, gender, age, ethnicity, disability and the part of Northern Ireland to which they consider themselves most closely associated. We do not think that there would be an advantage in making the Bill prescriptive.

The Government are fully committed to a reflective commission, and it is right and proper that those undertaking such important work should be identifiable with the community they serve. We do not need to go further than the current provisions. I am confident that when the commission is established it will be reflective of the community as far as possible, and will command the confidence of the community

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General 11:15 am, 25th March 2004

I hope that the Minister will forgive me, but those two sentences were the most wonderful official gobbledegook. It left me completely unable to fathom how a very distinguished Jewish lawyer—who is a member of a very small minority—could be reflective of the community. He cannot, because he may be in such a tiny minority within Northern Ireland that he is reflective of no wider community at

all, but he might be the perfect person to be a judge and serve on the commission.

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party

There are distinguished Jewish lawyers.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I am well aware of it, but there is a very small Jewish community. Once the reflective basis is introduced, such people will be squeezed out, not brought in.

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office

I say to the hon. Gentleman that that would be the case were we saying that there should be a representative quota. That is precisely why—unlike the review—we use the term ''reflective'' rather than ''representative''.

Photo of Mr Andrew Hunter Mr Andrew Hunter Independent Conservative, Basingstoke

I asked the Minister to clarify whether there would be some formalised means of redress for an aggrieved person. Did I understand him to say that he does not intend to establish any procedures whereby someone who believes that the commission is not reflective of the community can take action?

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office

I shall have to come back to the hon. Gentleman on that point, because I would stress that the matter properly depends on the use of ''reflective'' rather than ''representative''. We are not talking about a quota system; we are looking at a duty for those responsible for appointments to seek to achieve a reflective body. That body would, therefore, be one that commands the widest possible confidence in the community. I am not sure that people would have redress on the matter, and I am not sure whether they could take action on judicial review. I hope that before the end of my contribution, enlightenment will come to me and I shall be able to respond to the hon. Gentleman's point.

Amendment No. 50 would preclude the commission from establishing a committee to select someone to fill a judicial vacancy. We dealt with that matter at some length. Interestingly enough, the criminal justice review report did not envisage that the commission as a whole would conduct interviews. It would clearly not be practical to have an interview panel comprising 13 people. The functions of the commission in relation to particular appointments would have to be carried out by a body other than the commission in its entirety. Paragraph 6.105 of the review says:

''nor do we believe it necessary that each individual panel should consist only of members of the Commission, although that may well be the case for the more senior appointments.''

The review also recommended that a selection panel should have one lay member and a member of the judiciary at the tier to which the appointment would be made.

As I said during the lengthy exchange with the right hon. Member for Upper Bann, the commission is independent and best placed to decide how it carries out its responsibilities most effectively within the parameters defined by the 2002 Act. With some appointments—for example, to specialist tribunals—the commission might want those making the selection to include someone with detailed knowledge of the tribunal. In those circumstances, it might be necessary to include on the selection panel someone other than a commission member. However, we would expect a different approach when selecting people for

appointment to the High Court and there would be a strong case for saying that only members of the commission should be involved. The Lord Chief Justice, who will chair the commission, has agreed that a committee of the commission—the assessment panel—will be established for High Court appointments. It will be chaired by the Lord Chief Justice or, if he is unavailable, a Lord Justice of Appeal, and will comprise at least two other members of the commission, including a lay member and another judge. Only members of the commission would be on the committee to select a High Court judge.

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party

The material that the Minister has just given us is interesting and we want to reflect on it. I note that he said that there is a strong case for ensuring that the committees are composed in particular ways and that senior people, particularly senior judicial members, should chair them. If there is a strong case for ensuring that, why is he content to leave in existence a provision containing absolutely no safeguard?

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office

I have alluded a number of times to the composition of the commission, and we believe that we can rely on the commission to discharge its functions appropriately. We have given it the enabling power and we have confidence in it. Interestingly, we believe that a similar case can be made for some appointments lower down the system, but we do not propose to tie the hands of the commission in that regard. We have confidence in the commission, and I ask the hon. Gentleman not to press the amendment.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

It is almost a convention that at this stage of our consideration the Minister says that we have had a good debate. I do not think that we have had a particularly good debate, because there has been no force of argument from either side. I say to the

Minister, with regret, that his arguments were unusually and uncharacteristically lacking in weight. The right hon. Member for Upper Bann suggested that he would reflect on the arguments on amendment No. 1. I sincerely hope that he will do so, because the issues that we have raised remain unresolved to my satisfaction, and they are substantial and important.

On amendment No. 1 and its consequential amendment No. 2, the difficulty is that the Minister has demonstrated the wisdom of the approach taken by the criminal justice review in the first place. The requirement for lay membership of the commission is there because the people who would be drawn from the legal profession would not necessarily reflect the community as a whole. To extend that to the commission as a whole would create the host of problems that the right hon. Member for Upper Bann raised, and I hope that Minister will deal with those.

On amendment No. 50, it is exceptionally dangerous to offer unfettered discretion for delegation to such a commission. There are any number of ways in which it might be abused. I am not suggesting that it would be, but the possibility exists and there should therefore be safeguards. The parallel that came to my mind was with local government. For example, planning decisions are considered by a planning committee but ratified by the council as a whole. That is eminently sensible. It is not unusual and there are plenty of precedents.

I am mindful of the time and have no doubt that we shall revisit the issues, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Two o'clock.