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Mrs. Calton: I am sure that the Minister intends that merit should be recognised, but the problem is that leaving it out of the Bill means that it may not be. I hope that he will have another change of heart.
Mr. McNamara: I was surprised by my hon. Friend the Minister's comments, especially on the amendment moved by my hon. Friend the Member for Newry and Armagh (Mr. Mallon). I found nothing in it that seeks to undermine the independence of the judiciary or to prevent the appointment of men and women of merit from different communities.
I am worried about the fact that the very people who will adjudicate on matters involving equality, merit and the whole paraphernalia of human rights law in Northern Ireland will be the only people who are not subject to that legislation. It is nonsense to turn things upside down in
Judges will consider matters such as fair employment, human rights, the composition of the civil service and of local government and the operation of equality law in the private sector and in the professions, yet they will not be appointed under equivalent criteria. That is nonsense.
Mr. Browne: My hon. Friend neatly encapsulates the contradiction in his argument. One cannot guarantee that an individual judge who hears such a case in any circumstances is reflective of society in himself or herself. That cannot be achieved.
Mr. McNamara: With the greatest respect, that is not truly applicable. For a start, judges are allocated cases in a way that takes account of such factors. More important, what matters is the whole ambience of the process by which they are appointed. It is nonsense to argue that that should not apply to judges, but should apply to the upper echelons of the civil service, the police, the Policing Board and various other organisations, and then to say that middle-aged, mainly Protestant people are going to be judges and that we are not going to try to change that reflection of society.
Mr. McNamara: No, the hon. Gentleman did not understand me correctly. What I said was that, when the judges are selected, there should be an ambience that accepts this particular method, in which they are reflective and representative of society as a whole.
Lembit Öpik: Is not the hon. Gentleman saying that this is a matter of having a strategic commitment to reflectiveness in the entire system? To look at an individual case and say that a judge has to be one thing or another at that point does not negate the point that the hon. Gentleman and the hon. Member for Newry and Armagh have made. Does he not also agree that the Minister's resistance to this proposal is a good example of unjoined-up thinking, given that he himself has argued this case at other points in this debate?
I apologise to the hon. Member for Newry and Armagh (Mr. Mallon) if I did not appear to be helpful. I quoted from the Belfast agreement with the strong intention of being helpful to him. I believe that the Government should have a positive duty to promote equality of opportunity for women and ethnic minorities, and that that should be incorporated into the Bill by including words such as "representative" or "reflective". It was my intention to be helpful.
I want to go back to Government amendments Nos. 104 and 174, and to move the debate along a little. I appreciate the amendments that the Minister has tabled to deal with the ambiguity in clause 2a subject that was raised in Committee. The clause states:
(a) adding an office".
The Minister was good enough to clarify the earlier ambiguity. Will he now clarify the ambiguity that still exists? If the First Minister and Deputy First Minister could, on a good day, agree to act jointly, could they omit an office such as that of High Court judge? If they were to omit such judges, what would happen to that office? Would it automatically fall into the category of most senior judicial appointments? What would happen if the First Minister and Deputy First Minister decided, by order, in their wisdom, to omit High Court judges? That appears to be an ambiguity that has been left unaddressed.
In tabling amendment No. 70, I proposed the alternative arrangement of the Lord Chancellor setting up a tribunal in the unlikely event of the removal of the Lord Chief Justice. I know that I do not have support for that proposal, but there seems to be a genuine problem here. It has been written into the Bill on so many occasions that the First Minister and Deputy First Minister will be obliged to act jointly. With the best will in the world, those posts might be occupied by two politicians who might not be able to act jointly, and there should be an alternative arrangement for very serious occasions such as the removal of the Lord Chief Justice. The fact that such an occurrence would be most unlikely gives me some reassurance that the First Minister and Deputy First Minister would take the responsibility seriously and reach agreement. In the light of that, I am quite happy not to press my amendment, although I should like the Minister to address the ambiguity that remains in clause 2(2).
Mr. Gregory Campbell (East Londonderry): I take no particular exception to Government amendments Nos. 104 and 174, but I want to allude briefly to amendment No. 169, tabled by the hon. Member for Newry and Armagh (Mr. Mallon). The establishment of the Judicial Appointments Commission caused considerable discussion
I listened with interest as the hon. Member for Newry and Armagh outlined his perception of the difficulties arising from that failure accurately to reflect the community in Northern Ireland. I found myself asking in what other society there would be a fair and accurate reflection of the community in its judicial appointments, but I can only follow the hon. Gentleman's arguments about the commissions that he mentioned.
Within the last month the Government have accepted the need to redress the imbalance that existed in the Human Rights Commission. Rather than redressing it, however, they compounded it by appointing a number of people, none of whom reflected the community that my party represents. Unfortunately, the same applies to the Parades Commission. I would like to hear from the Minister how the Government intend to ensure that the Judicial Appointments Commission will, as reasonably as can be expected, be truly reflective of the community divisions that exist in Northern Ireland.
Mr. Browne: I rise to deal with some of the points that have been raised in this debate. If I am not comprehensive in my answers, I shall endeavour to write to hon. Members on whose points I have not picked up.
I thank the hon. Member for Reigate (Mr. Blunt) for his support for the Government amendments. In relation to his own amendments, I am happy to give him the undertaking that I will reflect upon them. As he knows, when I say that, it is more than just being polite, although he periodically defines it as such to score political points. He knows that throughout my stewardship of my portfolio, I have considered everything that he has put before me. That does not mean that I have to agree with everybody, but I shall reflect on the issues that he has raised.
The hon. Member for Cheadle (Mrs. Calton) ought not to read too much into my use of the vocabulary in the amendment. She sought to invite me into an area into which you, Mr. Deputy Speaker, might chastise me for going, as it is not necessarily relevant to the amendments before us. The hon. Lady ought to be conscious of the fact that the use of the word "reflective" in this debate was a reflection of the use of the word in the amendment. I caution her not to read any more into it than that: the matter certainly does not bear extending in the way that she sought.
The hon. Member for North Down (Lady Hermon) asked a specific question, and I have had the answer to it confirmed. Should the First Minister and Deputy First Minister seek to legislate to omit any judicial office from the list in the schedule, they would be required to make alternative legislative provision for such an appointment. That legislation would, of course, require cross- community support, so it would not be possible for the First Minister and Deputy First Ministerby omitting onlyto leave High Court judges in a position in which there was no appointments procedure for them. The judges would not automatically fall into the senior appointments category. The hon. Lady asked whether that would be the case, but it is perfectly clear from the Bill
The bulk of the debate has been concentrated on the amendment tabled by the hon. Member for Newry and Armagh (Mr. Mallon). The more he told me that his amendment was innocuous, the more I suspected that he did not believe it. Whether or not it is innocuous, the sentiments behind it are shared throughout the House and by the Government. I do not criticise the hon. Gentleman for seeking to achieve his objective, but I chastise him a little for slightly misrepresentingtotally accidentallymy argument in my opening remarks.
I did not seek to sayI do not think that the hon. Gentleman was trying to give the House the impression that I didthat the merit principle alone would resolve the problem. That was why I intervened on the hon. Member for Cheadle. We cannot debate this issue except in the context of the Bill. The whole of part 1, which is extensive, detailed and ground-breaking in terms of United Kingdom legislation, is designed to achieve a detailed and important infrastructure to ensure a transparent, open appointments system that allows those of merit to move into high judicial office, and other judicial office, in Northern Ireland.
To claim that I am saying to the House, directly or by implication, that if we have faith in the merit principle, it will deliver, is to misunderstand entirely the Government's position and mine as the Minister responsible. The review accepted that change, modernisation and a new structure were needed, and the objective of that new structure was the very one that the hon. Gentleman seeks. We want to attain that shared objective by the use of the merit principle in the context of that infrastructure.