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Standing Committee F
Thursday 31 January 2002
[Mr. Peter Pike in the Chair]
The Chairman: Before we resume the debate, I should inform the Committee that a revised selection list has been placed in the Room. The only substantial change is that amendments Nos. 171 and 172 to clause 27 have been selected for debate.
Judicial Appointments Commission
Amendment proposed [this day]: No. 91, in page 71, line 34, leave out 'may' and insert 'must'.[Lady Hermon.]
Question again proposed, That the amendment be made.
The Parliamentary Under-Secretary of State for Northern Ireland (Mr. Desmond Browne): It seems to be the pattern that I am speaking when we adjourn in the morning and that the new Chairman must call on me to continue when we resume.
Mr. Crispin Blunt (Reigate): Will the Minister give way?
Mr. Browne: Perhaps the hon. Gentleman will allow me to warm up a little.
I was discussing the effect of amendment No. 91 and the Government's reasons for resisting it. To quickly repeat some of the arguments, the amendment relates to the provisions for dismissing lay members of the Judicial Appointments Commission in certain cases and is intended to remove the discretion of the First Minister and Deputy First Minister in that regard. The Government's view is clear, and we expect the First Minister and Deputy First Minister to act. We do not, however, want to impose a duty on them to do so, because several of the reasons for dismissal are matters of judgment and there would remain an element of discretion, with or without the amendment. An element of discretion is built into the schedule, although it might not seem, on the face of it, to apply to two of the criteriaconviction for a criminal offence and bankruptcywhich some would argue are clear-cut. There is, however, an argument for discretion and a need for flexibility even in those cases.
We must trust the First Minister and Deputy First Minister; we should not tie their hands and compel them automatically to dismiss a lay member who has, for example, been convicted of a minor road traffic offence. The schedule contains generic phrases to describe the circumstances that would justify considering dismissal, but a phrase such as ''a criminal offence'' might refer to a minor road traffic offence. We
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must bear in mind that we are asking people to take on a difficult and potentially onerous job, and we should trust the First Minister and Deputy First Minister to apply an element of discretion, albeit in circumstances in which dismissal would be appropriate.
Mr. Edward Garnier (Harborough): It may be of some reassurance to Committee members if the Minister could clarify how one of the provisions in the schedule might be used. Equally, he could issue practice guidance for the First Minister and Deputy First Minister, although I accept that he does not want to interfere with their discretion.
In any case, paragraph 2(4)(d) refers to someone who
''is otherwise unable or unfit to exercise his functions.''
Someone with a criminal record for dishonesty or violenceand certainly for terrorismwould be wholly unsuited to exercising functions as a member of the commission. Clearly, we would prefer people of that calibre not to get on to the commission in the first place, but will the Minister comment on the use to which paragraph 4(d) will be put?
Mr. Browne: I am grateful to the hon. and learned Gentleman for inviting me to list the circumstances, but I do not think that it would be particularly helpful, for the reason to which he alludedI suspect that he agrees with me. When a statutory discretion is given to people such as the First Minister and Deputy First Minister in the context of devolution, it is not for me, as a Westminster Minister, to issue guidance to them on when they should exercise it. I have repeatedly said that I trust in devolution and I trust the devolved Administration to exercise their judicial functions appropriately. I have no reason to believe that they will not.
The inclusion of the catch-all phrase in paragraph 4(d) is understandable, because of the many possible sets of circumstances that might lead to a person's dismissal being considered appropriate. However, it is not for me to list the circumstances that may apply. By doing so, I may inadvertently give people the idea that my list was intended to be exhaustive, and that any circumstances that I did not mention do not apply. The circumstances should be considered case by case.
In relation to my earlier point, I can think of circumstances in which people could become bankrupt through no fault of their own. Their financial circumstances could be such that the situation was not caused by their own fecklessness, inattention to their own affairs or inability to manage them. For that reason, although it would seem to be a set of circumstances in which discretion ought not to apply, there is value in allowing the First Minister and Deputy First Minister discretion.
Mr. Garnier: It is good of the Minister to give us an example, but I am not sure that it is terribly helpful, as such a situation is already covered by paragraph 4(c). The Minister must have his own opinions, as an individual
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Mr. Browne: I shall give one example of a set of circumstances in which a person would be unable or unfit to exercise his functions. If, for example, a person was so ill that they were unable to attend meetings, it would be in their interest not to be placed under additional pressure by being threatened with dismissal for failure to discharge their functions. If, for example, a person's mental health became such that there were some doubts about their judgment, they might be unable or unfit to exercise their functions.
The same would be true if, for example, a person had to go to Zimbabwe because a relative was ill and had to be cared for, and was going to be away for six or seven months. There are many possible sets of circumstances. To list them does not help our debate about whether the First Minister and the Deputy First Minister should be allowed discretion in the matter.
The bankruptcy example from paragraph 4(c), to which I reverted, shows why I argue that such discretion is needed, even though some of the circumstances seem not to require it. It could be exercised in certain cases involving minor road traffic offences and persons who become bankrupt through no fault of their own. Those are good examples. I trust that that clarifies the matter for the hon. Member for North Down (Lady Hermon). If it does, and she is persuaded that there is a need for that discretion, I hope she will be persuaded to withdraw the amendment.
Lady Hermon (North Down): I shall disappoint the Minister. I am unable to withdraw the amendment, and for a simple reason
Mr. Blunt: I am glad to hear that, because I listened to the debate between the hon. Lady and the Minister. One can sometimes tell when the Minister has not convinced himself. His reply to the hon. Lady was a good example. That is why I shall support her in pressing the amendment to a Division.
It has not yet been pointed out that someone who has been convicted of a criminal offence or is the subject of a bankruptcy order will have been on the receiving end of justice from someone whom they might appoint. That would be a clear conflict of interest, and the amendment, if accepted, would avoid it.
Lady Hermon: I thank the hon. Gentleman for that intervention.
The benchmark against which the Bill should be measured is the Belfast agreementwhich some prefer to call the Good Friday agreement. For ease of reference, the aims of the criminal justice system are set out on page 1 of the review of the criminal justice system in Northern Ireland. It states:
''The Agreement set out what the participants to the multi-party negotiations believed the aims of the criminal justice system to be''.
Those aims include having
''the confidence of all parts of the community''.
I am not convinced that everyone in Northern Ireland will have confidence in a Judicial Appointments Commission if a non-judicial member can remain in office when he is unable or unfit to exercise his
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functions. I repeat that the First Minister and Deputy First Minister should be under a duty, rather than have a discretion. That would build the community's confidence in the commission.
Mr. Browne: What would happen if a person was unable or unfit to exercise the functions for a limited time? Should he be dismissed, or should an element of discretion be allowed? For example, would it not matter if he was unable to exercise his functions for three weeks, but might it matter if it was for five months? Should a person be dismissed if he accumulated an automatic conviction for careless driving?
Lady Hermon: I thank the Minister for that challenging intervention. I think that his point about a person being unfit for a period of time is dealt with in paragraph 2(4)(a), which provides that a non-judicial member may be dismissed if
''he has without reasonable excuse failed to exercise his functions''.
If he has a reasonable excuse for being unfit or unable to exercise his functions, it is covered; but to say that someone convicted of a criminal offence can sit on the commission does not inspire me with confidence.
Mr. Garnier: I not only agree with the hon. Lady, but I can take her argument a little further. The Minister's example of someone with a driving offence is hardly to the point. As it happens, some members of the English and Welsh judiciary have been caught speeding; indeed, in the pastI cannot comment on the present benchone or two have had drink-driving convictions. There is a distinction between the motoring offences that the Minister is trying to palm us off with and the sort of serious criminal offences that the hon. Lady and I are concerned about. It cannot be beyond the wit of man, woman or civil servantlet alone Ministersto draw up a form of words that distinguishes