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Mr. Deputy Speaker (Sir Michael Lord): I have no knowledge of the matter to which the hon. Lady refers, and I have had no indication that a statement is intended.

Mr. Andrew MacKay (Bracknell): Further to that point of order, Mr. Deputy Speaker—

Mr. Deputy Speaker: Order. I remind the House that we have a tight schedule today, and that this is taking time out of it.

Mr. MacKay: Further to the point of order, Mr. Deputy Speaker. I shall bear in mind the fact that, as you say, we have a very tight schedule within which to deal with an important Bill; but is it not outrageous that three separate heads of press and media at that Department have been sacked or forced to leave? Is it not essential for the Secretary of State, immediately after our debates on the Bill—which I agree should be conducted speedily, and concluded by 10 pm—to return to the Dispatch Box? I am not suggesting that that should interrupt the main business, but it would enable us to get to the truth.

Mr. Deputy Speaker: The right hon. Gentleman has made his point, and I have nothing to add to the statement that I made earlier.

Mr. Eric Forth (Bromley and Chislehurst): Further to that point of order, Mr. Deputy Speaker—

Mr. Deputy Speaker: Order. We have an extremely tight schedule, and we must move on. [Interruption.] I have dealt with the point of order. I do not wish to deal with further points of order relating to a point of order with which I have already dealt.

4 Mar 2002 : Column 41

Clause 2


Mr. Browne: I beg to move amendment No. 104, in page 2, line 5, at end insert—

'(other than the office of Lord Chief Justice or Lord Justice of Appeal),'.

Mr. Deputy Speaker: With this it will be convenient to discuss the following: Government amendment No. 174.

Amendment No. 169, in clause 5, page 4, line 35, at end insert—

'(8A) Without prejudice to subsection (8), the Commission must, as far as practicable, exercise its functions to select persons to be appointed or recommended for appointment in order to secure that the judiciary is reflective of the community in Northern Ireland.'.

Amendment No. 28, in clause 6, page 5, line 33, after "office", insert—

'for a maximum of three months'.

Amendment No. 70, in clause 8, page 6, line 23, after "by", insert "the Lord Chancellor or".

Amendment No. 29, in page 6, line 23, after "jointly", insert—

'with the agreement of the Prime Minister'.

Amendment No. 30, in page 6, line 30, leave out—

'the Lord Chief Justice or'.

The Parliamentary Secretary, Lord Chancellor's Department (Ms Rosie Winterton): Everyone is leaving. Was it something my hon. Friend said?

Mr. Browne: And to think that I imagined they might be interested in legislation.

In Committee, the hon. Member for North Down (Lady Hermon) expressed a fear that the First and Deputy First Minister's order-making power in clause 2 could be used to bring the offices of Lord Chief Justice and Lord Justice of Appeal within the remit of the Judicial Appointments Commission. I assure the hon. Lady that that was neither the intention of the review nor that of our policy. Furthermore, any attempt to make the Judicial Appointments Commission responsible for those senior offices in the future would require a cross-community vote in the Northern Ireland Assembly, and the agreement of the Lord Chief Justice.

Although those are in themselves strong safeguards, I have decided to put the matter beyond all doubt by means of amendment No. 104. I am grateful to the hon. Lady for bringing it to my attention, so that I could concentrate on it. The amendment would make it clear that the First Minister and Deputy First Minister may not use their order-making power to bring the office of Lord Chief Justice or that of Lord Justice of Appeal within the commission's remit.

Let me now deal with amendment No. 174. In Committee, Members expressed concern about the fact that sub-committees of the Judicial Appointments Commission could be made up entirely of members who were not members of the commission itself. The thinking behind the original drafting of schedule 2 was that if committees and sub-committees were always required to include commission members, an unfair imposition could

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be placed on their time. However, we are now in a better position to assess the commission's likely work load, and accept that the degree of flexibility envisaged in the original drafting may not now be required. The amendment therefore makes it clear that when the commission delegates any of its functions to a committee or sub-committee, the committee or sub-committee must always include a member of the commission and, unless that member is a lay member, a lay member or person eligible to be one.

I turn now to amendment No. 169. The review suggested that those responsible for judicial appointments should seek to ensure that the judiciary is reflective of Northern Ireland society. My hon. Friend the Member for Newry and Armagh (Mr. Mallon) proposes putting that in the Bill. In drafting the legislation, we have included the merit principle which the review made clear should be the overriding criterion in making appointments. Unlike the various statutory commissions on which we have placed the statutory duty to ensure representativeness, I see some difficulties in applying the same requirement to the appointment of judges. I recollect that on more than one occasion in Committee I went into these difficulties in some detail.

The amendment makes it clear that merit is the overriding principle, but that is immediately put in jeopardy in the amendment. It is vital that the judiciary continue to be viewed with respect and high regard by all sections of the community. I fear that the amendment would allow insidious suggestions to be made about future appointees—for example, that they were appointed not on merit but to even up the numbers. That is not in the interests of justice in Northern Ireland.

I share the sentiment behind the amendment and I, along with all Members, wish the judiciary to reflect the community that it serves. The best way to ensure a reflective judiciary is by ensuring a suitably balanced pool of eligible candidates who apply for vacancies as they arise. My hon. Friend will know that the judges of the future come from the pool of lawyers—whether they be solicitors or barristers—Queen's counsels and law students of today. This collective group is already highly mixed in terms of gender and community background. With time, the strict application of the merit principle will automatically lead to where we want to go. I hope, therefore, that my hon. Friend will withdraw his amendment.

Lady Hermon: The Minister will recall that on at least one occasion in Committee I mentioned that we already have a High Court judgment in the Evelyn White case in which the judge, quite rightly, took the interpretation of the words "representative of the community" from the context of the Public Processions (Northern Ireland) Act 1998. Will the Minister therefore go some way towards including words such as "representative" or "reflective" in the Bill, so that women and ethnic minorities will be included in judicial appointments?

Mr. Browne: I thank the hon. Lady for her intervention. This issue exercised us on more than one occasion in Committee and I will endeavour to make myself clear. I repeat that I share the aspirations of all Members that the judiciary of Northern Ireland should be reflective of the community that it serves. However, I am adamant and convinced that that is best achieved by an

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appropriate fair and transparent system that operates on the basis of merit. I am reinforced in that view by the people who are coming through in the profession and their reflectiveness of the community of Northern Ireland. In my view, the future for reflectiveness and representativeness should be left to the principle of merit and the infrastructure set out in the Bill that ensures a transparent system which will allow the best lawyers who want to be judges, wherever they come from, to become judges.

Lady Hermon: I appreciate the Minister's giving way again. This is just a small point. He said that the people coming through would be representative, and I take it that that means representative of women and ethnic minorities. How many women and members of ethnic minorities are coming through at any stage, at any level, in the judiciary in Northern Ireland?

5 pm

Mr. Browne: I do not have the precise figures and I will write to the hon. Lady with them. She will have her finger on the pulse of this better than I do, having taught some of those concerned recently. But having made inquiries, I am assured that, if anything, women make up more than 50 per cent. of those who have been seeking to join the profession; I say that from memory. It would probably be better for me to write to her about the precise figures. She is persistent and consistent on this issue, and rightly so.

The issue must be addressed across the legal profession and not just at the top. Unless the matter is addressed by the Law Society, the universities and the Bar Council, we will get at the top tokenism of the worst kind, which will interfere with the independence of the judiciary. It is my job in terms of the Bill to create an infrastructure and a process that will fiercely and jealously guard the independence of the judiciary. I do not believe that including in the Bill provisions that will allow people to argue that, whatever the merit of an individual candidate at some point in the future, he ought to be appointed to even up the numbers to create some perception of balance, will serve the people of Northern Ireland. I do not think that the hon. Lady is unconvinced by that argument, but I will write to her on her questions.

Amendment No. 28 would place a time limit of three months on the suspension of the Lord Chief Justice in a situation where the Prime Minister and Lord Chancellor were considering making motions for the presentation of an address to Her Majesty for his removal. We expect action under this clause to be a rare event, if ever. If action were ever taken, we hope that the necessary steps would be taken quickly. However, it would be a mistake to tie our hands too much in the way proposed. Clause 6 is only ever likely to be invoked in extremely serious cases. We cannot know for sure how much time a tribunal might take to report. I would therefore urge hon. Members to withdraw the amendment.

The effect of amendment No. 70 would be to give the Lord Chancellor a role in the removal from office of the Lord Chief Justice. The process of removal from judicial office is very much linked to the process of appointment. Given that the Lord Chancellor, after devolution, will not

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have a role in the appointment of the Lord Chief Justice—or, for that matter, of any member of the judiciary—it would seem inappropriate that he should have a role in considering removal from this judicial office. In Committee it was argued from some quarters that the Lord Chancellor should continue to have a role in the appointment of judges, even after devolution.

The Government's position was clear then and remains so now. It would be inconsistent to devolve that function while retaining a role for the Lord Chancellor. It would be equally inconsistent to retain the Lord Chancellor's involvement in the removal process once the responsibility for judicial appointments had been devolved. I ask therefore that the amendment be withdrawn.

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