Justice (Northern Ireland) Bill

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Lady Hermon rose—

Mr. Browne: If the hon. Lady will hold off, I am sure that she will hear a response to her main point.

The schedule was drafted in this way because some judgment had to be made about the commission's workload and the ability of a commission of such a size to do that amount of work. The Government had to take the view that it would be unfair to ask people to devote an unreasonable amount of time, especially those who were members of the judiciary--one or two of them might be senior members of the judiciary. A judgment had to made about that and, on that basis, we decided that committees or sub-committees might be needed. More work has been done in that area and, although I cannot give precise figures as to how many vacancies the commission will have to consider, I can tell the Committee that we are now inclined to think that the degree of flexibility in the provisions will not be necessary.

I accept that there is worth in the argument that members of the commission should take the lead in the committees and sub-committees. However, it is important to retain flexibility so as to be able to bring in expertise that may be required, as my hon. Friend the Member for Hemel Hempstead said, given the full range of appointments for which the commission has responsibility. I see so many nodding heads that I think that the Committee now agrees that that is the right approach.

My hon. Friend the Member for Newry and Armagh proposed a simple solution. I have not been a Minister for long, but I have enough experience to know that the simplest solutions are often the most dangerous. His solution is deceptively simple—it cannot be right. Therefore, I ask the Committee for time to consider the issue, so that an appropriate amendment may be introduced on Report that deals with the matter and reflects the views shared in the Committee.

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If the hon. Member for North Down is satisfied with that, it will save the Committee time, because I might not need to deal with her amendment. However, if she still thinks that her amendment has worth—never mind an amendment of sub-paragraph (3)—I shall go on to describe its effect, which may not be what she believes it to be.

Lady Hermon: I appreciate the Minister giving way and the contribution made by the hon. Member for Hemel Hempstead.

I welcome the fact that the Minister will review the composition of the committees and sub-committees. There is no difficulty in bringing expertise into a committee on which members of the Judicial Appointments Commission sit. The difficulty is that those committees or sub-committees might consist of non-members of the Commission. The entire—

The Chairman: Order. This is supposed to be an intervention. I call the Minister.

Mr. Browne: Perhaps I should be comprehensive. I have taken on board the criticism of that provision, which is shared by those who have spoken and others who have not articulated it. I undertake to table an amendment on Report to deal with it and to reflect the position of the Committee.

I insist that the structure of committees and sub-committees allows the co-opting of expertise—in particular from tiers of the judiciary that are not represented on the Commission—where necessary. A number of legal office holders from such tiers would not be able to sit on committees or sub-committees if the amendment were agreed. That could lead to the unfortunate situation in which a committee or sub-committee might be considering an appointment to a tribunal, and tribunal members would be barred from sitting on that committee because they were not eligible to be members of the commission. The provision, amended as I hope to amend it, will exclude circumstances in which a committee can be made up only of non-commission members. We shall still need the flexibility to bring in people who would otherwise be ineligible. The amendment would have an inadvertent and accidental consequence, which I do not think the hon. Member for North Down would want, so I ask her to withdraw it.

Mr. Andrew Turner (Isle of Wight): I have been trying, with the assistance of my hon. and learned Friend the Member for Harborough, to ascertain whom the amendment would cover.

Mr. Browne: With respect to the hon. Gentleman, had he been paying attention rather than seeking assistance from his colleague, he might have heard the answer. The amendment only impacts on people who are ineligible to sit on the commission. By process of elimination, those people are, broadly, from the tiers of the judiciary that are not eligible to sit on the commission. Because it might be appropriate and desirable for people from one of those tiers to bring their experience to a committee, the Government resist the amendment.

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Lady Hermon: I thank the Minister for that explanation, which was very helpful. I take it that he has addressed both my points—

Mr. Browne: Absolutely.

Lady Hermon: I thank the Minister. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Blunt: I beg to move amendment No. 36, in page 74, line 10, leave out paragraph 12.

When I read this provision, I thought that it was odd that there was a duty to have a lay member, but no duty to have a judicial member or someone who was eligible to be a judicial member. It seemed to be an unnecessary limitation on the commission's means of deciding how its committee structure would work. In the end, the commission will, through its membership, be responsible for all judicial appointments. Although I understand that, in today's environment, there is a need to involve lay members, that requirement is met by the totality of the commission, whose lay members—the Committee has agreed—should have no legal qualification. The requirement is too detailed to appear in the Bill, and it should be for the commission to sort out its committees and sub-committees and to take responsibility for the results of their work. The requirement for lay membership is met by the totality of the commission's membership, and the schedule imposes an unnecessary restriction on the commission's work.

Mr. Browne: The reason for the Government's attention to lay membership and for the provision that we eventually included in the Bill has its roots in the review. Paragraph 6.105 recommended that panels should always include a lay person where an appointment was being considered at deputy resident magistrate level or above. The review introduced that idea into the Government's thinking, but my view was that it should be applied more generally and, in particular, driven down the appointments process. Lay people may be appointed to exercise judicial functions lower down the system, and it seemed important to involve a lay person in the appointments process through the committees and sub-committees.

I see that the hon. Member for Reigate is underlining other parts of the recommendations—perhaps he should have done that before. In any event, I shall come to those in a moment. As I was saying, it seemed equally important to have lay involvement both where lay persons were being asked to carry out judicial functions and where people were being appointed to senior posts. That is why the provision is important.

Paragraph 6.105 also stated that a member of the judiciary should be included. In all probability—in fact, almost certainly—the commission will appoint a member of the judiciary to all the committees, but I have included the provision to ensure that a lay person is appointed, too. That is the simple answer to the hon. Gentleman's question, but if it does not satisfy him, he can press his amendment, although that would be

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unfortunate given that it neither reflects the recommendations nor insists that a member of the judiciary be included.

Mr. Blunt: The Minister cannot have it both ways. If he is going to rely on the review, the schedule should insist on a member of the judiciary being included. Paragraph 6.105 states that the panels

    ''would always include at least one member of the judiciary at the tier to which the appointment was to be made and a lay person.''

The Bill should contain a similar provision or no provision at all, and I seek to give the commission flexibility by striking the provision out in its entirety. We know the circumstances in which the review reached its conclusions and made its recommendations, and it is unreasonable for the Minister to cherry pick the bits that he likes and to rely on the review's recommendation in this instance.

The Committee has already agreed the provisions that establish the commission's make-up, and we should now follow the principle of giving the commission as much flexibility as possible, rather than of being as prescriptive as possible. If the Government are going to be prescriptive, they should be consistent and follow the review. My preference is not to be prescriptive, which is why I would prefer to remove paragraph 12.

I shall not press the amendment to a Division. I simply invite the Minister to reflect on our debate and to go back to his advisers, the Court Service, the judiciary and any others whom he thinks it appropriate to ask, to consider whether it is appropriate to remove that provision.

3.30 pm

Mr. Mallon: I welcome the fact that the Minister is going to reconsider the matter. I do not believe that the provision can remain in the Bill, because I cannot see how legislation that allows for the creation of a Judicial Appointments Commission can simultaneously provide a system whereby none of those people would be involved in making judicial appointments. I look forward to hearing the Minister's proposals. The point so rightly made by the hon. Member for Reigate would then be reflected in a new approach.

Mr. Blunt: I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Blunt: I beg to move amendment No. 39, in page 74, line 15, leave out paragraph 13.

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