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Mr. Browne: I shall be polite, at least.

Mr. Blunt: I hope that the hon. Gentleman will be more than polite; I hope that he will reflect on what we have said and come back with amendments to address our concerns in another place.

Mr. Mallon: I listened with interest to what the Minister said about my amendment, and I find it increasingly difficult to understand his underlying fear. Mine is not a pernicious amendment in any sense; it is a benign, gentle amendment, which reflects what the Minister says is the Government's intention. It also adequately reflects the position represented in the criminal justice review.

I feel that I should address two points that the Minister made earlier. He said that this gentle, innocuous little amendment, which is in tune with his objectives and those of the Government, could put the merit principle in jeopardy—I believe that those were his words. I am trying to think how that could happen, and I shall listen further to the Minister to find out. I await his explanation with interest, because I would have thought that, far from placing anything in jeopardy, my gentle, innocuous little amendment would do something else.

The Minister also said that he is convinced that the merit principle will automatically lead to a situation in which such an amendment will not be necessary. We have all thought that at certain times in our lives. Those of us who have lived in Northern Ireland for a long time thought it not just for a few years but for decade after decade. There are those in many walks of life who are still buying that idea and to whom it is still being sold,

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and quite effectively. We are told that the merit principle will automatically lead to changes in the civil service in the north of Ireland—changes in gender, ethnic groupings and community divisions. The reality is that those changes will take much longer than my lifetime, or what is left of it. We should not buy the notion that if we take these measures and say nothing about them, they will automatically lead to changes such as those described by the Minister.

I challenge both of the Minister's assertions because at the heart of the amendment is one word, "legitimacy"—the legitimacy of what we are trying to do. If the measures are to enjoy that legitimacy, there should be representativeness of the community in Northern Ireland. The review pointed that out clearly when it said:

Those are profound words, and they are even more profound when they are applied to Northern Ireland because at the moment, regrettably, the judiciary is not representative of society as a whole. The Minister has no figures on that; the Government have no figures on it, but all the Members from the north of Ireland who are sitting here know that the judiciary is not representative. Let me be more explicit: women are almost completely unrepresented in the judiciary; ethnic groupings, which are large and growing in the north of Ireland, are largely not represented; nationalists are not fully represented and nor is the wing of Unionism which would tend towards a more robust approach to the Union. Those are facts of life, and they will not automatically change.

That is supposition because the Government do not monitor such data. They monitor such data in every other walk of life but there is a remarkable mystique surrounding this part of life which is reflected in the Bill. The Bill says that a lay appointment must be not only reflective but representative of the community, but an appointment to the judiciary cannot be either reflective or representative of the community. It is okay for the layman; it is not all right for the judge. Frankly, that is not all right for the people of the north of Ireland because we are all ultimately equal and we should all be treated with equality.

It goes without saying that I fully accept the importance of merit in making judicial appointments. Clause 5(8) states that the selection of a person for judicial appointments

I agree with that. However, I and many others are concerned that, taken alone, the requirement to make appointments solely on merit might limit the ability to take the appropriate affirmation action recommended in the review.

Certainly, without a duty to secure a representative judiciary, in so far as is practicable, there would be no obligation to engage in those affirmative action measures, yet not one of them derogates from the merit principle in any way. The Government themselves have stated that

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they are committed to implementing those measures, and they are set out specifically in paragraph 6.85 and 6.11 of the review.

Lady Hermon: I rise simply to draw the hon. Gentleman's attention to a provision in the agreement that clearly states that the British Government will have a duty

among other things. Those words clearly impose a positive duty on the Government to take action to promote equality of opportunity for women and ethnic minorities. I hope that the hon. Gentleman will regard that as helpful.

Mr. Mallon: I take the point that the hon. Lady makes, but I am not convinced. The agreement also obliges both Governments to ensure parity of esteem, but we shall discuss that matter later. To answer the hon. Lady directly, we are dealing with legislation and we have a duty to ensure that those who make such appointments have a duty to do so in a way that is not contrary to the merit principle, that is in tune with that principle and that reflects the community in the desired way. As the Minister said earlier, that has been done previously by imposing a duty on the appointing authority to ensure representativeness in so far as is practicable.

For example, the Secretary of State has a duty to ensure representativeness in so far as is practicable when making appointments to the Policing Board, the Parades Commission, the Human Rights Commission and the Equality Commission. I do not regard that as pernicious, nor do I regard any of those boards as pernicious in the sense that people were not appointed on merit. I believe that there is a substantial weakness in the argument that proposes that, if a Government face their responsibilities in legislating, somehow or other they derogate from the highest standards, including the merit principle.

I do not believe that the Policing Board was appointed on anything other than the type of merit standards that are required to keep that board afloat in Northern Ireland. I do not believe that the Parades Commission, the Human Rights Commission or the Equality Commission derogated from the merit principle in any way. I believe that we should challenge the Government's assertion that a gentle and innocuous amendment such as mine would somehow devalue the merit principle. It does not derogate from that principle; if it did so, whether in terms of the Policing Board, the Human Rights Commission, the Equality Commission or the Parades Commission, it would be illegal. I am not for one moment suggesting that the Government are acting illegally in respect of any of those bodies. However, we must ensure that proper regard is given to taking appropriate measures to help to ensure representativeness. Such measures could relate to public advertising, the operation of boards and the appointments process. The purity of the position that has been argued might emerge and what has been proposed might be effective, whatever it leads to over time, but I do not believe that that will happen. That has not been the experience in Northern Ireland.

5.30 pm

My amendment is designed to impose a duty on people who make appointments to the judiciary. I do not think that they should be without such a duty; they should not

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have 52 cards to play with. They should not have a free hand because they have a duty to ensure that the judiciary is not only appointed on the merit principle, but reflects the community that it serves. Is that asking too much of any legislation? Is it imposing too much on any commission? I do not believe so. My amendment is fully consistent with the review's recommendation that

What better way is there to state such an objective than to enshrine it in legislation? I believe that my amendment, gentle and innocuous as it is, achieves that and I recommend it to the House.

Mrs. Patsy Calton (Cheadle): As it turns out, I want simply to express my support of the hon. Member for Newry and Armagh (Mr. Mallon), who has been infinitely more eloquent than I could possibly be.

I was pleased to hear the Minister use the word "reflective" on at least half a dozen occasions. I am very pleased that he did so, given the arguments that we had in Committee about reflectiveness versus representativeness when we discussed the need to ensure that lay members of the Judicial Appointments Commission reflected the community. I am pleased if he has accepted the arguments that were advanced. I hope that he has done so, as the word "reflective" is more precise in doing what we are trying to achieve and perhaps less ambiguous than "representative".

I would like to support the views expressed by the hon. Member for North Down (Lady Hermon). I agree that merit must be the principle on which judges should be appointed. But to argue that having a reflective group of people doing that job might mean that we end up with people who are not of the highest quality is to argue that women and people from ethnic minorities are less intelligent or less able to do their jobs. That is the current position, and it is nonsense. In Committee we argued strongly that positive action is needed to ensure that merit is recognised, because at the moment, in all sorts of ways, it certainly is not.

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