Justice (Northern Ireland) Bill

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Mr. Graham Stringer (Manchester, Blackley): On a point of order, Mr. Chairman. Given the progress that we are making on the Bill, I should like, with your permission, to move the suspension of the Committee for 10 minutes so that we can have a meeting of the Programming Sub-Committee.

10.13 am

Sitting suspended.

10.18 am

On resuming—

The Chairman: So that everyone knows where we are, including myself, I should say that we are returning to amendment No. 9. Once we have disposed of the amendment, we shall vote on the amendment to the programme motion before returning to proceedings as on the selection list.

Lady Hermon (North Down): I want to support amendment No. 145, which was tabled by the hon. Members for Montgomeryshire and for Cheadle (Mrs. Calton). I also want to speak to amendment No. 90, which I tabled. Like those hon. Members, I am especially concerned that lay members of the Judicial Appointments Commission should be truly representative in terms of gender and ethnicity. The Committee may recall that on Tuesday the hon. Member for Cheadle made a useful intervention on the Minister about the make-up of those on the bench in Northern Ireland. In reply to it, the Minister kindly explained that, so far as he knew, there were no women or members of ethnic minorities on the bench.

Mr. Browne: As I recollect the question, it related to specific tiers of the judiciary rather than the whole judiciary.

Lady Hermon: I agree. The lay members could be used to address the present imbalance.

Another reason why I want amendment No. 145 to be made is that various pieces of legislation already use the words

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    representative of the community in Northern Ireland.

The Committee may be surprised to know that, in the recent Evelyn White case, a judge in Northern Ireland interpreted the phrase in relation to the Parades Commission as meaning representative in the sense of Protestant and Catholic, not of men and women, let alone the ethnic minorities.

If the Minister were on good form, he would agree to make amendment No. 145, so that the Bill would state that ''representative'' should apply in terms of gender and ethnicity. If he will not do so, I invite him to say that it is his understanding that

    representative of the community in Northern Ireland

applies in terms of not only religion, but gender and ethnicity. Would he like to do so now, before I move on to amendment No. 90?

Mr. Browne: I am delighted to accept the hon. Lady's invitation to intervene on her. I intended to tackle the issue in response to the points made, and it may reassure her to know that I intended to use words that would exactly reflect what she wants.

Lady Hermon: Amendment No. 90 relates to the lay members of the new Judicial Appointments Commission. For the ease of members of the Committee, I remind them that it reads:

    In appointing persons to be lay members, the First Minister and deputy First Minister must so far as possible secure that the lay members have a sophisticated understanding of legal issues as well as proven experience in selection procedure.

The rationale behind the amendment derives, as do the words themselves, from international comparisons to other judicial appointment commissions. I am sure that the Minister is familiar with the research reports listed at the back of the criminal justice review. Appendix B contains an exceptionally useful research paper—No. 5, on judicial appointments—by a lady called Colette Blair. She considers international models for appointment commissions in, for example, the Republic of Ireland, South Africa and New Zealand but, alas, not Zimbabwe. She concluded:

    The international models of Appointments Committees have varying degrees of similarity. Most feature a Chief Justice as Chairperson, representatives from the courts, Bar Council and legal profession. When lay members are included they are chosen from individuals with a sophisticated knowledge of appointments procedure and legal issues.

That language is reflected in amendment No. 90. It seems eminently sensible that the lay members of the commission should follow the suggestion in the review, which states:

    The lay members would be selected on the basis of the additional value which they would bring to the Commission's deliberations, including such qualities as experience of selection processes, the court users' perspective and the ability to assess the personal qualities of candidates.

That is what the review team had in mind with regard to lay members. Although the Committee may not accept the exact wording of amendment No. 90, I would like the Minister to address the point that, on an international comparative basis, judicial appointments commissions have lay members who have a sophisticated knowledge of appointments procedure and legal issues. Perhaps we could find a phraseology that would reflect the international

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experience to the benefit of the Judicial Appointments Commission at home in Northern Ireland.

Mr. Turner: I must first express some concern at the failure, as I perceive it, of other Committee members to appreciate the points that were ably made by my hon. Friend the Member for Reigate. Those who have spoken about his amendment may have failed to appreciate—I find it almost incomprehensible—the perception by some parts of the community in Northern Ireland that anyone who is involved in the judicial process, particularly at the level of judicial appointment, is a Unionist. That may not be true, but it is a widespread perception. It arises because those people appear to be part of what is sometimes called the apparatus of the British state. Such perceptions demonstrate the importance of ensuring the ''representativeness'' of the whole commission, rather than just its lay members.

Amendment No. 9, tabled by my hon. Friend the Member for Reigate, removes the requirement that a certain part of the commission be representative. Making the lay members representative would, at least in the perception of certain members of the community who regard judges as broadly of a Unionist persuasion, make the commission as a whole appear unrepresentative. I appreciate that the Minister has tried to apply himself to that point, and the hon. Member for Cheadle has also done so, but I have not yet heard a successful answer to my hon. Friend's point.

If the Committee rejects my hon. Friend's amendment, I have some sympathy with amendment No. 144 tabled by the hon. Member for Cheadle, because ''reflective'' and ''representative'' do not have the same meaning. We are looking for reflection of the community, rather than representativeness, because it is inappropriate that on a commission of this kind the membership should be appointed in a representative way. We want people who reflect the diversity of the community, but we should not believe that individuals on the commission represent their own communities. It would be sensible to accept the hon. Lady's amendment if subsection (7) remains in the Bill.

10.30 am

My second reason for being concerned about the subsection is the weight applied to it in making appointments and in the litigation that follows appointments that do not meet the pattern that some may expect. Such litigation is inevitable, so the point is important. So far as I can see, the only requirement that the Bill imposes on the appointment of members of the Judicial Appointments Commission is that contained in subsection (7). I see no requirement in the Bill for appointments to the commission to be made on merit.

If merit is to be a consideration of greater importance—as my hon. Friend the Member for Reigate and, I believe, the hon. Member for Cheadle assumed—it should be written in to take priority over subsection (7). That does not appear to be the case. For that reason, I welcome amendment No. 90, as proposed by my hon. Friend the Member for North Down. It may not be perfect, but at least it recognises

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that merit is more important than representativeness, reflectiveness, gender or ethnicity.

We want on the commission people who are capable of doing the job, but there seems to be no suggestion in the Bill that the members should be capable of doing the job. That may be called an assumption, but Ministers have said that judicial interpretation is likely to give priority to what is written into legislation over assumptions that may generally be made.

For those reasons, I hope that my hon. Friend the Member for Reigate will press amendment No. 9 to a Division. If he does not do so successfully, I shall be happy to support amendment No. 144.

Mr. Mallon: The speech by the hon. Member for Isle of Wight (Mr. Turner) shows the importance of the matter raised by the hon. Member for Reigate. It is a matter that will return as we progress through the Bill. In aiming for reflectiveness in those appointed to the commission, we come up against a problem. If there were a requirement for representativeness in the appointment of all sections of the commission, I venture to suggest that some might view the wording of subsection (7) differently.

The hon. Member for Isle of Wight makes a valid point: the merit principle does override when it is measurable, as it is in judicial appointments. We must consider the question of legality because, if the merit principle does not apply, the process is illegal. The hon. Gentleman says that the Bill is silent on that point—I take his judgment on that, as I cannot verify it myself.

However, one does not necessarily apply the merit principle exclusive of representativeness. The hon. Member for Cheadle made the valid point that the reason for the exclusion of certain groupings—women, ethnic groups, nationalists, Catholics, call them what you like—is not lack of merit but something different, and we must find a way of dealing with it. I tabled an amendment that I hoped could have been debated on Tuesday, but I made a mistake in its placing on the amendment paper. However, I hope to speak to it today and try—do not know how successfully—to get that representativeness reflected in the Bill.

I shall make some observations on amendment No. 90. A ''sophisticated knowledge'' and understanding of legal issues is difficult to define, but among its members, the Committee has various levels of sophisticated understanding of legal matters. That would be the case in any group, but it does not preclude good judgment. It is good judgment that we must ensure, and that is the merit of the lay appointments. Minds that are capable of good judgment may not be clouded with a sophisticated understanding—or the lack of it—of legal matters.

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