Justice (Northern Ireland) Bill

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Lady Hermon: May I draw the hon. Gentleman's attention to one of the provisions of schedule 2? We are spending a lot of time discussing the composition of the Judicial Appointments Commission—it is a valuable discussion—but I hope that the hon. Gentleman has noted that the commission can delegate its work to sub-committees, including the power to make judicial appointments, with the

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recommendation that each committee must have a lay member. Does he not agree, therefore, that the lay members need a

    sophisticated knowledge of legal issues

and appointment procedures in order to help at that level?

Mr. Mallon: I certainly agree with the hon. Lady that it would help, but I know of people with a very sophisticated knowledge of legal matters who are not always able to bring to the case the qualities of good sense and judgment that would be required of a lay person. However, I do not think the issue will divide us. I am more worried that such people should have a proven understanding of selection procedures.

I have seen selection procedures in use for a long number of years—in district councils, the Palace of Westminster, the Northern Ireland Assembly and the civil service. I would be much more worried about lay members' interpretation of the selection procedure than I would be about their legal sophistication. My experience is that selection is controlled by either the civil service or, in a political sense, the Whips. The selection procedure is the controlling factor. I welcome lay participation because lay people would have open minds and be more likely to understand some of the ways in which selections are made.

Mr. Browne: This has been a useful debate. Important issues were raised, and all contributions were welcome, as they give me an opportunity to explain why the Government have chosen to implement faithfully the recommendations of the review in this regard—that is, recommendations 78 and 79, a discussion of which can be found in paragraphs 6.103 and 6.104 of the review. I shall endeavour to deal with all the issues that have been raised and I hope that hon. Members will be satisfied that the Government's approach is appropriate, so that we will not need to return to the issue in any depth later, as it may surface in relation to other clauses.

I am now clearer about the intention of amendment No. 9. The amendment tabled by the hon. Member for Reigate would remove the requirement on the First Minister and Deputy First Minister to ensure that lay members of the Judicial Appointments Commission are representative of the community, although I thought that that was what he wanted. The amendment takes some explaining, which is perhaps why the hon. Member for Isle of Wight thought that he had to try to explain it to us again. He explained why taking the word, ''representativeness'' out of the Bill was intended to put representativeness into the process.

One can argue that the amendment runs contrary to the review recommendation that requires the First Minister and Deputy First Minister to secure representativeness in the lay members of the commission. The review even specifies that that should be achieved through legislative provision, which is exactly what we have done. The hon. Member for Reigate also explained that he knows for a fact that the tiers of the judiciary in Northern

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Ireland are predominantly male and Unionist. The hon. Member for Isle of Wight said that that was just a perception. But whether it is perception or fact, the hon. Member for Reigate went on to explain that the ability of the First Minister and Deputy First Minister to balance membership of the Judicial Appointments Commission, which will necessarily read across, necessitates the liberalisation of their roles.

Mr. Blunt indicated assent.

Mr. Browne: The hon. Gentleman nods his head, which means I have got it right, in which case I am pleased.

Our fundamental problem with that approach is that, for very understandable reasons relating to the administration of justice and the independence of the judiciary, the Government wish to avoid, not encourage, any assessments of the political balance of the judiciary or any process that puts the spotlight on judges to try to establish their political inclination, or a concentration on whether they are Catholics or Protestants or come from nationalist or Unionist backgrounds.

It seems to me that the necessary consequence of the approach of the hon. Member for Reigate is that that spotlight needs to be trained on judges, and that some not opaque but explicit assessment of an individual judge's ability to represent a part of the community—not only in political and religious terms but in gender and ethnic terms, although gender and ethnicity are more straightforward and obvious—

Mr. Blunt rose—

Mr. Browne: If the hon. Gentleman will just allow me to finish this important point.

The Government are adamant that we should do nothing that runs contrary to the first clause of the Bill, which protects the independence of the judiciary by treating it as being representative of any part of the community. The independence of the judiciary and the merit, ability and professionalism of its members, not how representative they are of the community, are what qualify them to do their jobs. Judges do not represent any particular part of the community, and there should be no read-across to that effect in the Bill. Nor should judgments be made to that effect, regardless of whether judges are acting in their capacity as judges or in their additional capacity as members of the commission, as some will be asked to do under the Bill. That seems to me to be a complete answer to the question of reading across representativeness in the context of judges, whether they are on the bench or members of the commission.

10.45 am

Mr. Blunt: The Minister will be aware that paragraph 5(3) of schedule 2 refers to those who apply for appointment to the commission. It states that the annual report

    must include information about their gender, age, ethnic origins and community background.

I accept that paragraph (5) goes on to say that

    an annual report must not identify any person or include information from which the identity of any person could be readily ascertained,

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but that will be enormously difficult to achieve, given the small size of the judicial community. The Minister ascribes some importance to that objective, but the Government will have a problem achieving it. That is why the First Minister and the Deputy First Minister should be given greater freedom.

Mr. Browne: I am grateful to the hon. Gentleman, but he conflates another part of the Bill with his desire to assess judges' ability to represent parts of a community that we know is divided. He wants there to be a read-across into appointments of lay representatives by the First and Deputy First Minister so that there can be a balance. That is, however, entirely different from providing for a post hoc report to give the public appropriate information about the commission's actions and make-up. The hon. Gentleman seeks to make individual judges, and particularly—this is his argument—their politics, representative of parts of the community. We seek absolutely to avoid that and to put a bar on such an approach, which would undermine the whole judicial system. The hon. Gentleman is nodding, and although I do not know whether that indicates that he understands and accepts my argument, there is no answer to it. That is why the review concluded—it did not spell this out—that a representative commission must be arrived at through the lay membership, however difficult that might be. If that was not why it reached that conclusion, it is certainly an additional reason for doing so.

Amendment No. 144, which was tabled by the hon. Member for Cheadle, requires that lay members be ''reflective'' rather than ''representative'' of the community. We could spend a whole day discussing the difference between those words, but I am not sure why, in the context of the commission, we should tinker with a word that the people of Northern Ireland are becoming used to and which judges are becoming used to interpreting. There is a body of understanding as regards its definition and parameters.

There is, of course, a world of difference between the judiciary, which the review says should be reflective, and the commission's lay membership, which should be seen to represent different parts of the community. The word ''representative'' has been used for numerous public bodies, such as the Northern Ireland Human Rights Commission, and we have heard of the litigation over the representativeness of the Parades Commission. It is helpful that that body of definitions and understanding is growing, although there will be some confusion at the beginning of the process. However, at least we have a better understanding of representativeness in relation to commissions such as the one that we are considering than we would have if we substituted the word ''reflective''. I do not understand why the hon. Lady and her hon. Friend the Member for Montgomeryshire think that that change is important for the commission that we are dealing with, as opposed to any other.

Mrs. Calton: I understand the Minister's argument that the word ''representative'' has assumed a meaning that is in one sense synonymous with ''reflective''. However, in another sense it is not synonymous, and

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might imply that the membership had been chosen to represent a certain section of the community.

Mr. Browne: I think I can help the hon. Lady in that regard. There may be some discussion later about whether it is appropriate to use the idea of representativeness in thinking about the judiciary. I have a basic argument about that, which flows from my earlier argument: judges should not represent a particular part of the community. However, there is a difference in the case of a commission of the kind we are discussing, which will operate on a collegiate basis. I think that there is growing understanding of that in Northern Ireland, for obvious reasons.

It is important that the make-up of commissions such as the Northern Ireland Human Rights Commission, the Northern Ireland Parades Commission and, now, the Judicial Appointments Commission, which operate on a collegiate basis, should be representative. However, that does not mean that members should, once in their posts, operate as delegates or as people representing communities. Recently in Northern Ireland, people's ability to co-operate in collegiate settings has been apparent—and the Northern Ireland Policing Board has praised some of the decisions taken in those contexts. Those concerned are not seen as divided in what they do by delegate or representative roles, because they do not have them. There is a growing understanding among those who are asked to do such difficult jobs that, on taking up membership of a commission or a body with a collegiate nature, they cannot act in that way.

The Government do not expect that people who take posts on boards or organisations that are intended to be representative overall will behave as delegates. By and large they do not do so, which is encouraging. The process is bearing fruit. That is the fundamental reason for the Government's belief that we should use consistent phraseology in setting up such bodies, so that people get used to it. It is then possible to generate the circumstances in which people are known to work properly, and the bodies concerned can be examples to each other.

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