Clause 3 - Duty of Commission to secure judiciary reflective of the community

Justice (Northern Ireland) Bill [Lords] – in a Public Bill Committee at 2:30 pm on 25th March 2004.

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Photo of Joe Benton Joe Benton Labour, Bootle

With this it will be convenient to discuss the following amendments: No. 12, in

clause 3, page 2, line 25, after 'of', insert 'continuous'.

No. 31, in

clause 3, page 2, leave out lines 26 to 38.

No. 56, in

clause 3, page 2, line 26, after 'of', insert 'continuous'.

No. 13, in

clause 3, page 2, line 36, at end insert—

'(11) The Commission shall submit a report annually to the Lord Chancellor on the progress of the programme of action and the Lord Chancellor shall lay this report before Parliament.'.

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

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.

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office 2:45 pm, 25th March 2004

For a considerable period in the history of this country, all judges were male. Does the hon. Gentleman think that changes in society should not be reflected in the judiciary?

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

Changes in society are reflected, as all institutions evolve over time. My objection is to the imposition of change through legislation. No further legislation is needed because of the balance that already exists in the Northern Ireland judiciary. Of course, as society changes over time, all institutions will reflect that. My quarrel is with legislation imposing a requirement for change.

Having addressed that point, I shall make a final observation to the Minister. Although I do not expect it to happen, it is imperative that the Government reconsider and reflect on the provisions contained in lines 24 to 38 of clause 3. We certainly support a system of transparent, open and fair judicial appointment that is free from political motivation and politicisation, but I do not believe that such objectives can be achieved unless those lines are withdrawn from the Bill.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I want to concentrate on amendments Nos. 12, 56 and 13, but before doing so, it is perhaps worth passing comment on the points made by the hon. Member for Basingstoke (Mr. Hunter), some of which are extremely valid. We have embarked in Northern Ireland on the process of institutionalising equality in order to achieve a non-sectarian society. That is undoubtedly difficult to achieve in practice and may have undesirable side effects. We need consider only one example. The pool of talent from which the judiciary can be recruited is not, and cannot be, reflective of society, any more than doctors or any other group can be.

As is the usual tendency with Northern Ireland legislation—indeed with all legislation—we do not want to grapple with the issue, which is the creation of a judiciary with no sectarian bias by upbringing or inclination. It ought to be possible to appoint people to discharge judges' functions properly, irrespective of their sectarian background. That is the aim, but as

usual the legislation fudges it in what can only be described as politically correct terminology. We are likely to continue to do that. I reluctantly accept that there has been a lot of pressure behind this amendment to spell out what should be the ultimate state of the judiciary. The clause has the saving grace of the words

''made solely on the basis of merit'',

which go some way to drawing the sting from what is otherwise a very unsatisfactory proposal. However, that is not to say that clause 3 cannot be improved.

Photo of Andrew Robathan Andrew Robathan Conservative, Blaby

Before my hon. Friend continues, is it not the case, whether one likes it or not, that because of this Government's policies, the two largest parties are now Sinn Fein, which does not accept the authority of this Parliament and whose members do not take their place in it, and the DUP—among whose members I have many friends—which is considered to be on the more extreme wing of Unionism? In order to reflect society, will the majority of members of the judiciary have to be supporters of the DUP or Sinn Fein? Is that the logical consequence?

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

As the wording is illogical, I do not think that that will be the logical consequence, thank goodness. The consequence will be that a group of people sitting in a room making appointments will look at a person's background and say, ''Is he Catholic or Protestant? Will we end up with a judiciary that appears to be largely Protestant or largely Catholic?'' That will influence their decision on who is appointed next. If the saving provision, which contains the words

''solely on the basis of merit'',

is properly applied, it should ensure that thoroughly competent judges are appointed.

On the other hand, it will also mean that at times an extremely competent person, who should be appointed, is not appointed when he might have expected to be, and that someone who is about as competent, or at least over the threshold of competence, is preferred to him because at the time it looks better on the balance sheet of Protestant and Catholic judges. It will also have a contributory effect in that someone who is neither Protestant nor Catholic will be appointed on the basis that it adds an extra dimension and suggests that the system is working well. That is the reality of the proposition.

Photo of Nick Palmer Nick Palmer Labour, Broxtowe

As the hon. Gentleman says, the issue reaches beyond Northern Ireland. We also discussed whether women felt represented by a largely male Parliament. In the world that the hon. Gentleman would like to see, would appointments be made only on the basis of competence? Is he is opposed in principle to people recognising people like themselves in the judiciary?

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

My position is clear, which will be apparent when we debate the Constitutional Reform Bill, should it reach this House in its present form. Appointments to the judiciary should be made solely on the basis of merit. However, it is desirable in any society to ensure that all those who have merit can obtain advancement, which means that women, Catholics, people of different sexual orientation—

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

Indeed, and people with different political views; they should all be appointed as long as they are prepared to subordinate their views to their practice as a judge. Of course, if one notices that a group within the judiciary comes from a very narrow base, it is proper to consider why that situation has come about; it may be for one of a number of reasons. However, I would not depart from the centrality of the issue of merit, because as soon as we start to tinker with it to obtain another outcome, there are likely to be undesirable results.

Photo of Mr Tony Clarke Mr Tony Clarke Labour, Northampton South

Given his defence of the status quo, will the hon. Gentleman tell me why he believes that the majority of the judiciary to date come from one faith?

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

We must be a bit careful here. I do not have the statistics at my fingertips, but I said at this morning's sitting—the right hon. Member for Upper Bann nodded in agreement—that the High Court of Northern Ireland had a majority of Roman Catholic judges. That is a matter of delight, and irrelevance, to me, because it should not influence or be relevant to the discharge of their functions.

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

I apologise for interrupting the hon. Gentleman's flow, but he made that comment earlier, interpreting my nod in a way that was not intended. I am not fully au fait with the position with regard to the community background of the Northern Ireland judiciary. My understanding is that of the four judges in the Court of Appeal and above—the three Lord Justices and the Lord Chief Justice—three are from a Catholic background. I do not know the position with regard to puisne judges. I am afraid that the hon. Gentleman interpreted my nod as indicating that the majority of High Court judges had a Catholic background, but it is the majority of those superior to High Court judges. I have no idea about the position among puisne judges, and I caution people against making assumptions.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I am grateful to the right hon. Gentleman for correcting me, as I had misinterpreted him. I have not yet had to carry out a study into the religious affiliation of judges in Northern Ireland, so what he says may be correct.

We know that one reason for the imbalance is historical. That is not a reason for not addressing it, but we should consider the state of the judiciary in England and Wales. It was said earlier that there was an insufficiency of women judges, and there are certainly far fewer female judges than male, but we have only to look at the statistics on entrants to the Bar to see that a continuing shift towards more women judges is likely simply because the pool of entrants has changed so dramatically compared with, for instance, when I started my career as a barrister.

The same applies to ethnic minorities in England. Currently, about 18 per cent. of entrants to the Bar are from an ethnic minority, which is considerably higher than the percentage in the population at large, and we are likely to see change come about when those people become eligible for judicial appointment. That all

shows that evolutionary change can take place without statutory manipulation.

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

The hon. Gentleman has come to the nub of the point. As we are seeing a change in the pool from which appointments are made, do we not expect that change to be reflected in those appointments? We would be surprised if the appointments were not reflective, so it is legitimate to build in a duty for them to be so. That is why we use the term ''reflective'' rather than providing for a representative quota. We are not tying the number to a mathematical formula, but looking at trends and how they will be reflected. By encoding that, we are trying to ensure that a process that could and should happen actually does happen.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The Minister makes a valid point. However, it could equally be argued that if the facts are as the Minister has stated—and I agree with them—there is no need to encode anything and that the change will happen of itself because the proper frameworks have been set up through the Judicial Appointments Commission. This is undoubtedly an important issue, and I want to do justice to the contribution made by the hon. Member for Basingstoke. However, I do not want to get bogged down, so I shall turn to my amendments.

I will not seek today to get rid of the whole clause, but I want the Minister to focus on our amendments. They concern what constitutes a programme of action. If the programme of action is to be along the lines that the Minister has identified, it will not be one in which a group of people sit round a table and ask how many members of each religious group are present in the judiciary and how they can ensure that in six months they have made the necessary adjustments. The programme must also aim to ensure that people apply.

We tabled amendment No. 12 to insert the word ''continuous'' to make it clear that the programme of action is a long-term project rather than a short-term fix. The anxiety has always been that the provision would lead to short-term fixes to produce the numerical adjustments that might appear desirable. I should be interested in the Minister's comments on that. I think that the word ''continuous'' adds something to the clause and might go some way to confound the suspicions of those who think that the provision will simply lead to a rigging, whereby talent and merit come second and political correctness comes first.

Amendment No. 13 concerns submitting an annual report to the Lord Chancellor about the programme of action. Again I hope that the Minister will accept our proposal, as it is desirable that the House should be kept informed of what is going on. First, it would enable us to applaud progress. Secondly, it would enable us to consider whether there were any problems with what is not an uncontroversial scheme. I hope that the Government will look favourably on the amendment.

Photo of Eddie McGrady Eddie McGrady Social Democratic and Labour Party, South Down 3:00 pm, 25th March 2004

The amendment appears to be based on two presumptions. The first is that the question of equality is somehow in

the same category as an equal outcome. As has been mentioned, equality of opportunity is addressed in the Good Friday or Belfast agreement. The hon. Member for Basingstoke seemed to suggest that securing appointments by a process that is reflective of the community excludes meritocracy, but the two are not mutually exclusive in this context. It is possible to have a reasonably practical reflection of the community while achieving the objective of meritocracy.

The amendment does not assist the proposed duty of the commission to secure a judiciary that is

''so far as is reasonably practicable to do so . . . reflective of the community in Northern Ireland''.

Many of our debates this morning did not take account of that important phrase ''reasonably practicable''. One can achieve only what one can achieve. The meritocracy principle has always to be applied to the end product. Surely it is appropriate that the programme of action for appointments to judicial offices, for instance, should, as far as practicable, be reflective of the community. That does not mean that the end product will be exactly reflective of the community; that will happen only as far as is practicable. That is overridden by the final phrase in subsection (8), which is that the appointments must be made

''solely on the basis of merit''.

The commission has to have available for consideration

''a range of persons reflective of the community of Northern Ireland''.

The onus is on it to make suggestions of persons who are reflective of the community in a practicable way. I see no real reason why those principles should not be applied in everyday life; that is done in many other quarters. Why is it so offensive to many people that it should be done in the judiciary and the administration of justice?

The hon. Member for Basingstoke made one or two other points that seemed totally irrelevant to our debate. He suggested that the amendments appease the republican movement. If they did appease, I would probably be the most vociferous in opposing them, because my community has suffered more than anyone else from the republican movement and those in my party have suffered more than people in any other from the republican movement. I have been in my home for days on end under siege by pickets from Sinn Fein and the republican movement, and my wife and family have also been subjected to those sieges. There have also been threats against my life from other paramilitaries, so I am not in the business of appeasing extremism in any form, be it republican or Unionist.

I am in the business of trying to move our society forward from the isolation and division that it has suffered. We must melt the icy chill that, rightly or wrongly, pertains in certain sectors because the entire community has not been able to be involved in all aspects of life, including the judiciary and the criminal process. We must enable the entire community to be involved in those things. For that reason, I argue strongly that it is proper for these measures to be in the Bill.

We have the safeguards of the override provision relating to meritocracy and the fact that what is to be done on reflectivity must be done with reasonable practicality, so the outcome will not necessarily be reflective of the community. This point has been a source of many arguments, not only in this debate, but in earlier ones, as we could have an outcome that is not reflective of the community but which is the best reasonably practicable result of the process.

For those reasons, I oppose the amendments. I do not think that they have been proposed on a justifiable basis. I am referring to the outcome that would allegedly be achieved if the amendments were agreed to. I go back to the status quo of clause 3 as proposed, which I support.

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

I wish to make a number of points. First, I agree with the hon. Gentleman in that I do not think that the proposals are intended to be a concession to republicans. They may, however, be a consequence of other concessions to republicans. To put it crudely, the background to the legislation—the hon. Gentleman may not agree—is that the SDLP was so concerned about the electoral consequences of the other concessions that the Government were granting to republicans that it urged the Government to do some things at its behest, so that it could try to persuade the nationalist community that it was just as effective at achieving changes. That is why we have these measures, although they are not terribly well advised and some are downright harmful.

There is another comment to make on the background. Reference has been made to judicial appointments, and I wish to place some comments about that on the record. When the Northern Ireland judiciary was formed in the 1920s, there were only five senior appointments. There was one Lord Justice as well as one Lord Chief Justice, two lords justices and two puisne judges. One of the latter five was a Catholic. The first Lord Chief Justice appointed in Northern Ireland was from a Catholic background. From then until the late 1960s, at least one of the five judicial appointments was always a person from a Catholic background. That judiciary was reflective, to use the Minister's term, of the community.

I can remember only one occasion in my time when it was suggested that there was anything unfair about appointments. If my memory is correct, in the mid-1960s Lord Fitt, then the hon. Member for Belfast, West, suggested that some malign influence from Stormont was holding back the appointment of Ambrose McGonigal as a High Court judge. Why someone in Stormont would want to hold back such a distinguished former member of the Special Air Service I do not know, but, irrespective of the merits of that suggestion, Ambrose was appointed to the High Court bench in about 1968 or 1969. I say that to make the point that it would be unfair of Government Members to think, because of comments that have been made, that there was some problem with appointments in Northern Ireland.

I must make the distinction between appointments to the High Court and above and to county courts. During the last 30 years, there was significant difficulty in persuading Catholics to take appointments as

county court judges. County court judges, because of their involvement in criminal proceedings, bore as much responsibility, according to terrorist circles, as High Court judges without having the same status or remuneration. Regrettably, county court judges of a Catholic background were murdered during that 30-year period. As a result, the difficulty of making appointments led to an imbalance. Those historic points help to show how unnecessary some aspects of the legislation are.

I shall now deal with the legislation. The Government are committed to human rights, and anyone familiar with human rights law knows that there is a huge difference between the basic non-discrimination requirement and any question of affirmative action. There is a clear line to be drawn: if we want to be consistent with human rights legislation, appointments should be made on merit and on an individual basis.

It is permissible to have programmes to encourage people to apply—affirmative access in that sense. The reference in subsection (10)(b) to the need

''to secure that a range of persons reflective of the community . . . is available for consideration''

is a perfectly legitimate form of affirmative action and it does not conflict with basic principles. However, if we go beyond that form of affirmative action—measures designed to assist and encourage people to apply and make themselves available for appointment—towards a system that implies that there must be a quota or equality of outcome, we are crossing the line and behaving unlawfully and improperly. The danger of the provisions is that, having set the standard of equality of opportunity, there will be so much emphasis on affirmative action that people tend to think, ''If we don't achieve equality of outcome, we will be in trouble.'' In that way the process becomes biased and corrupted.

The Government ought to be particularly careful and sensitive to ensure that they stay on the right side of the line. Subsection (10)(b) stays on the right side of the line, but subsection (10)(a) is getting dangerous. It refers to a programme of action

''designed to secure, so far as it is reasonably practicable to do so, that appointments to listed judicial offices are such that those holding such offices are reflective of the community''.

There is a danger that the merit principle could be overborne by people feeling that they have to secure a particular outcome.

The words that the Minister used in an intervention compound the danger. In response to the hon. Member for Beaconsfield, he said that the Government are imposing a duty that the judiciary should be reflective. That is not my understanding of the legislation. He said that in this Committee and there is a serious danger that that phrase, which is wrong, could be used as an interpretation of the legislation. I beg him to be more careful about the language he uses. There is no duty that the judiciary should be reflective. If there were, that would undoubtedly be wrong. Indeed, the Government may

have to seek another derogation from the European convention on human rights.

Although I see some merit in affirmative action programmes, and subsection (10)(b) might be acceptable, subsection (10)(a) is dangerous—I should be happier if it were removed. The whole concept is misconceived: it returns to the question of the definition of ''reflective''. We are dealing with judicial appointments at various levels. From whom can such appointments be made? They can be made, obviously, only from people with the relevant education, expertise and experience, so inevitably they are drawn from a limited pool. Reference has been made to appointing members of the DUP. I have no objection to that, although the best qualified member of the DUP has just declared himself a candidate for the European Parliament, so that might be a problem. There is a limited pool from which to appoint people, which even the programme of action in the Bill will not broaden—or if it does, it will take decades.

Encouraging more people into university education leading to legal qualifications, rather than media studies or some such, is probably good in itself, but then encouraging them to go into a particular branch of the legal profession would take a long time to have an impact—or is it intended to be a programme of action directed at existing qualified people to encourage them to apply? The most effective way to encourage people to apply for judicial appointments is to increase the salaries and the perks. That is always the simplest and best way of doing it: if there are not enough people from a particular background within the legal profession, the job should be made more rewarding and more remunerative. People are held back from applying because the rewards of staying in practice are greater than those of the bench. If that is what the scheme refers to, it is a simple matter, but if it is intended to encourage people to go to university to study law, it is really quite silly.

This is similar to the provision to which I referred earlier about making the commission reflective of society as a whole: there are huge impracticalities involved, as well as dangers. I should prefer the scope of the provision to be narrower. I am sorry that the hon. Member for Basingstoke and I are the only people who wish to narrow it; I fear that the uncharacteristic political correctness of the Conservative Members present has held them back. Will the Minister reconsider these matters, and in particular the language used in the legislation, some aspects of which are ill-advised?

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office 3:15 pm, 25th March 2004

It might be helpful to consider the reverse picture. We are talking about securing a judiciary that is reflective of the community, but would anyone want to get up and argue in favour of an unreflective judiciary? If it is a legitimate and proper aspiration to have a judiciary, and other bodies, that are, as far as practicable, reflective of the community, it is sensible to consider how that can best be achieved. That is why the commission should consider a programme of action designed to achieve it.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I rather disagree, because the Minister is asking a nonsensical question. It is important to have a judiciary that commands public respect and is accepted as discharging its functions impartially and well. Those should be the only criteria. The Government intend, through the legislation, to try to ensure that that happens by providing reassurance to sections of the community that feel alienated. That is the issue, otherwise the choice of words, which the Minister emphasised, is wrong.

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

I must then part company with the hon. Gentleman. He seems to be arguing that it is irrelevant whether the judiciary or any other body is unreflective.

My noble Friend Lord Filkin argued in the House of Lords in September that there were three good reasons for such bodies to be reflective. He said:

''First, if one does not manage to attract more people as candidates to be selected only on merit, one is at risk of wasting talent.''

We would all be concerned about that. He continued:

''Secondly, there is straightforward human fairness. If one does not treat seriously people who have ability and talent, they are deprived of opportunity.

Thirdly, confidence is a factor.''—[Official Report, House of Lords, 8 September 2003; Vol. 652, c. 134.]

I would argue that the third point is consequential on the other two—it goes to the heart of the point made by the hon. Gentleman about public confidence. If there is a belief that we are not being fair, or that we are wasting talent, that may lead to a decline in public confidence. That is why the clause is drafted as it is: it fully highlights the need for selection on merit, but also identifies the need, for the reasons that I have outlined, to seek to ensure that the judiciary is, in this instance, reflective of the community. That is desirable, and we therefore have to examine how to achieve it. That is why we talk about a programme of action rather than a prescribed outcome. We are talking about an input rather than a prescribed output.

It is reasonable to suppose that that would include investigating possible equal opportunity issues, and examining how to stimulate interest from a broader range of applicants suitable for judicial office. We believe that by stimulating such interest, it should be possible to achieve a more reflective judiciary without compromising the merit principle.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I do not want to make the Minister's time more difficult, but the issue centres on what ''reflective of the community'' means. A Protestant judge of the High Court is not likely to be very reflective of life on a north Belfast Protestant housing estate, but it is likely that he will—or may—command at least some measure of respect for being a person who will discharge his functions properly. That is the difficulty with such choices of words, which are then elevated into mantras, because any detailed analysis shows that they do not really mean what the Minister is trying to say that they mean.

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

I thought that I was quite capable of making myself clear on that matter, as I did in an earlier debate on the membership of the commission. I talked about being reflective in terms of community

background, gender, age, ethnicity and disability, and also reflective of the part of Northern Ireland with which the appointees consider themselves to be closely associated. I said that on age, for example, there would be an inherent difficulty, because of the question of advancement through the system and the building up of experience. That is where the practicality test comes into play.

I know that we must make progress, but I repeat that if we turned the concept round, we would need to examine the implications of saying that we were quite happy with an unreflective judiciary.

Amendments Nos. 12 and 56 would require the Judicial Appointments Commission to engage in a programme of continuous action rather than simply a programme of action. Although achieving a reflective judiciary will be a continuous process, and will build on past experience, I am not sure that the word ''continuous'' adds to what the Bill asks the commission to do. In response to a very similar amendment tabled in another place, the Government tabled an amendment to ensure that the commission will ''at all times'' engage in a programme of action. We therefore responded to that concern at an earlier juncture.

Turning to amendment No. 13, I quite agree that it is important that the Judicial Appointments Commission should report on the progress of the programme of action. Hon. Members will no doubt be reassured that there already exists an express statutory requirement for the commission to report annually on how it has exercised its functions during the preceding financial year. I am happy to assure hon. Members that such reports will include information on the commission's programme of action. Each report is required to be submitted to the Lord Chancellor and laid before each House of Parliament. Accordingly, I ask hon. Members not to press their amendments.

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

I imagine that it was predictable that amendment No. 24 would give rise to a recitation of firmly held positions. That does not, of course, detract from the sincerity of the views held. I should like to turn briefly to the comments of the hon. Member for South Down, for whom I have more respect and regard than he sometimes appears to credit. I wish he would convey to us the realisation that no single political party or group of politicians in Northern Ireland has a monopoly of concern for healing historical wounds and building a sound, healthy society.

My academic debate with him focuses on my belief that equality of opportunity for judicial appointments already exists. The danger of the line that the Government are following is converting that equality of opportunity into equality of outcome, with an entirely different outcome from what they would like. The Minister talks of the importance of creating public confidence. My fear is that the affirmative action that the Bill promotes will achieve exactly the opposite and undermine, not promote, confidence in the judiciary.

The debate has been quite thorough. I do not suppose that many of us are entirely happy with how it has gone. Although I will not insist on the amendment,

I should point out to the Minister that it addresses issues to which we may wish to return on Report. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 ordered to stand part of the Bill.