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Clause 2 - Membership of the Commission

Part of Justice (Northern Ireland) Bill [Lords] – in a Public Bill Committee at 10:30 am on 25th March 2004.

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Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party 10:30 am, 25th March 2004

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.