Justice (Northern Ireland) Bill

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Mr. Mallon: The Minister was asked an interesting question. I cannot imagine the First Minister and the Deputy First Minister agreeing about everything—that is an understatement.

A more fundamental point arises. Devolution in justice will not take place unless it has cross-community support, not just from two people, one called the First Minister and the other called the Deputy First Minister, but from the entire political system. Such support will not arrive on a wing and a prayer. People will want to know exactly what devolution entails before they give that cross-community support. Therefore, I imagine that there will be a long process of negotiation during which such matters will be worked out.

However, the Minister is right to say that the First Minster and the Deputy First Minister will appoint—

The Chairman: Order. Interventions must be brief.

Mr. Mallon:—huge numbers of people. They thought that they could not appoint four lay people to the commission. The mind boggles.

Mr. Browne: I am grateful to my hon. Friend. Members of the Committee will appreciate the value of his contribution, in view of his experience.

I want to draw my remarks to a conclusion, because the hon. Member for Montgomeryshire deserves more detailed criticism of the amendments. My interpretation is that the review was anxious to ensure that Assembly members were not appointed as lay members of the commission, and that has been provided for in paragraph 19 of schedule 2. We have been faithful to recommendation 80 in allowing the First Minister and the Deputy First Minister to

    secure the appointment of lay members through procedures in accordance with the guidelines for public appointments—

that is, the normal procedures. It is not appropriate to put in statute the requirement to follow normal procedures; they will apply in any event.

Another criticism of the hon. Gentleman's approach is that it betrays a surprising mistrust of the procedures that we are setting up, which will come into force after devolution, and will require some confidence in the devolution process. I know what his views on devolution are, and I am surprised that he has that regrettable lack of confidence. We do not believe that the First Minister and Deputy First Minister, acting jointly, would appoint inappropriate lay members, nor that the Lord Chief Justice would appoint inappropriate judicial members. If we had as little confidence as the hon. Gentleman has in the proposals, we would not propose a Judicial Appointments Commission or work towards devolution in criminal justice matters at all, let alone to a target time of after the Assembly elections in 2003. We are confident that we have implemented recommendation 80 correctly.

Through amendment No. 6 the hon. Member for Reigate and those supporting him seek to stipulate that a deputy county court judge shall be one of the

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judicial members of the commission. If I understood him correctly, he prays in aid, with some support from the hon. and learned Member for Harborough, the number of members, which is 40. However, that would go against the review, which recommended one judicial member from each tier of the judiciary, and carefully balanced the number of legal representatives against the number of lay representations. Although the review took a broad brush and did not intend to be prescriptive, it was. Deputy county court judges are not a separate tier, any more than temporary judges of the High Court are a separate tier. They are referred to in the list in schedule 1—as, for that matter, are deputy resident magistrates, who are referred to in the Bill under their proposed new title.

6.45 pm

The Government have been faithful to the review's recommendations, in that the list to which the hon. Member for Reigate referred includes an appropriate member of each tier of the judiciary, including the lay magistracy, to reflect the commission's recommendation. To be consistent with his arguments on representation based on the list, we would have to find not one more, but at least three more, representatives, because the temporary High Court judges are the same as the deputies that he seeks to include, and the deputy registered magistrates are no different in their relationship to their tier. I therefore invite the hon. Gentleman to withdraw the amendment.

Mr. Blunt: This is an important issue because, although the Minister has spoken about the need for different perspectives in the make-up of the Judicial Appointments Commission, the most important perspective is judicial because it is the profession that should have the most important knowledge of the appropriate people to promote. In view of the number of people available for appointment, especially at the higher levels, the number of positions that are available for appointment and the small size of the pool from which people are drawn in Northern Ireland, it would establish the principle of independence and merit if the judicial members of the commission had more influence. It is wrong that there should be five judicial members under the chairmanship of the Lord Chief Justice, which in effect makes six, and five lay members.

The Minister has chosen to include the members from the legal profession with the judicial members for the purposes of his arguments, which is unfair. The judiciary should have the most influence within the commission on which of its members should take up the appointments, which is why the balance of the commission is wrong. Too often our reflex response is to say that lay members must be good by definition because they are independent and supply additional qualities that a profession cannot bring. Given the appointments system under the First Minister and Deputy First Minister, it is especially important that the commission is rebalanced as I propose.

Mr. Mallon: I share the hon. Gentleman's view that professional expertise is invaluable, but what has led to this situation whereby there is not a single female judge or person from an ethnic group? That is the

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structure that the hon. Gentleman admires so much, and that I have admired so much. We must make the fundamental changes that have to be made.

Mr. Blunt: I have some sympathy with what the hon. Gentleman says about outcomes. Of course everyone would want all the professions, of which the judiciary is the most important, to try as far as possible to reflect the community that they serve. However, the most important principle, as the review acknowledged, is merit. That must take priority over requiring the judiciary to be representative—which the Bill does not invite us to do.

In taking us forward to the debate on amendment No. 9, the Minister misrepresented the arguments that I will use. I tabled the amendment to address some of the concerns that the hon. Member for Newry and Armagh has just expressed.

This is an important issue, and I shall press amendments Nos. 2 and 4 to Divisions on the assumption that if amendment No. 2 is accepted I shall wish to continue with amendments Nos. 3, 4 and 5. It is a matter of principle that judicial members should have a greater weight on the commission.

Lembit Öpik: In my definition, ''lay member'' means not a professional. I am not convinced that people who are expert or highly professional in their trade would be regarded as lay members. However, having had the argument, we shall all have to make our own decisions.

Not satisfied with rejecting my offer of assistance on the previous group of amendments, the Minister now chooses to reject the offer of extra power for the Secretary of State for Northern Ireland. This is the political revolution that we have been waiting for from a Government who claim to be inclusive. I only hope that it will spread like wildfire throughout their ranks, so that when the Prime Minister looks around aghast at all the power that is being given away to others and says, ''Where did this begin?'', we can point at the Minister and say, ''He started it.''

The Minister said that I must be feeling fairly lonely. I have heard it said that it is sometimes necessary to be right and yet to feel as if one stands alone. This is not one of those occasions.

As the Minister rightly deduced, our efforts with the amendment were based primarily on the need for the review strategy to ensure that appointments and political influence are clearly separated. As the hon. Member for Newry and Armagh said, the structure proposed in the Bill leads inevitably to the prospect of a degree of political influence in the matter of appointments. That does not necessarily make it wrong, given that that is no different from the way in which many appointments are made at Westminster and elsewhere.

The inference is that if on some future occasion we find ourselves debating the issue in the House, with great concern expressed about the decisions made by a future First Minister or Deputy First Minister, we will

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not have a right to complain. That is the consequence of the decision that we are making on devolution. We must clearly understand that we are importing into the arrangement in Northern Ireland the same danger of political appointment as exists here in the Palace of Westminster.

Mr. Mallon: I simply ask whether that might not be a much more honest approach. Should we not recognise the differences that exist, rather than making the assumption that is made elsewhere, that no political influence is used in legal appointments? Would that not be much more honest, healthy and dynamic than hiding behind the notion that somehow or other, if senior judges do something there are no political implications?

Lembit Öpik: The hon. Gentleman makes a crucial point. I think it genuinely beneficial to have on the record the fact that we accept the dangers that he has acknowledged, and which I, too, raised. If that is what we want, we should then make a positive decision to treat like with like and accept the potential consequences at some future point. Although I am concerned about how long we are taking to debate these amendments, given the other business that we have, the feeling of the Committee seems pretty clear, and it therefore seems to have been a worthwhile debate, although I accept that the amendments as they stand were open to the criticism that they have received.

As I listened to the speech of the hon. Member for Newry and Armagh—I mean this completely genuinely—I remembered why I am occasionally so impressed with our Committee structure. The hon. Gentleman added genuine value to the debate, highlighting the issues that we have discussed from a position of experience. That is the priceless quality of a Committee such as this, when it works effectively. I want to thank him for providing a clarity that has deepened my understanding of a point that I had only grasped implicitly. Now I grasp explicitly the point about accepting the danger of the structure but not necessarily rejecting the structure as a consequence of that danger.

My conclusion from our debate is that devolution does not take away the risk. Devolution requires a cost-benefit analysis and a risk analysis, but at the end of the day, although we are conscious of the risks that we take, we should not expect the devolution settlement to eliminate something that, in 1,000 years of Parliament, we have failed to eliminate here. Although I shall withdraw the amendment, I hope that we have achieved something that I did not really expect from these amendments: a deeper understanding of the consequences of what we are doing here. I hope that in the light of the debate, we will bear that valuable insight in mind as we seek to maintain the balance between providing the Assembly with the powers that it deserves and acknowledging that that sometimes requires us to take a few risks. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: No. 2, in page 2, line 29, leave out ''five'' and insert ''six''.—[Mr. Blunt.]

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Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 16.

Division No. 2]

Blunt, Mr. Crispin Calton, Patsy Francois, Mr. Mark
Garnier, Mr. Edward Turner, Mr. Andrew

Atherton, Ms Candy Barnes, Mr. Harry Browne, Mr. Desmond Clarke, Mr. Tony Dobbin, Jim Hall, Patrick Hermon, Lady Heyes, Mr. David Kilfoyle, Mr. Peter
McIsaac, Shona McWalter, Mr. Tony Mallon, Mr. Seamus Mole, Chris O¨pik, Lembit Stringer, Mr. Graham Tynan, Mr. Bill Woodward, Mr. Shaun

Question accordingly negatived.

Amendment proposed: No. 4, in page 2, line 34, leave out '(and have never held)'.—[Mr. Blunt.]

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Question put, That the amendment be made:—

The Committee divided: Ayes 5, Noes 17.

Division No. 3]

Blunt, Mr. Crispin Francois, Mr. Mark Garnier, Mr. Edward
Hermon, Lady Turner, Mr. Andrew

Atherton, Ms Candy Barnes, Mr. Harry Browne, Mr. Desmond Calton, Patsy Clarke, Mr. Tony Dobbin, Jim Hall, Patrick Heyes, Mr. David Kilfoyle, Mr. Peter
McIsaac, Shona McWalter, Mr. Tony Mallon, Mr. Seamus Mole, Chris O¨pik, Lembit Stringer, Mr. Graham Tynan, Mr. Bill Woodward, Mr. Shaun

Question accordingly negatived.

Further consideration adjourned.—[Mr. Stringer.]

Adjourned accordingly at two minutes past Seven o'clock till Thursday 31 January at half-past Nine o'clock.

The following Members attended the Committee:
Pike, Mr. Peter (Chairman)
Atherton, Ms
Barnes, Mr.
Blunt, Mr.
Browne, Mr.
Calton, Mrs.
Clarke, Mr. Tony
Dobbin, Jim
Francois, Mr.
Garnier, Mr.
Hall, Patrick
Hermon, Lady
Heyes, Mr.
Kilfoyle, Mr.
McIsaac, Shona
McWalter, Mr.
Mallon, Mr.
Mole, Chris
O¨pik, Lembit
Stringer, Mr.
Turner, Mr. Andrew
Tynan, Mr.
Woodward, Mr.

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Prepared 29 January 2002