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Lady Hermon: Does the non-statutory judicial appointments board in Scotland have the power to delegate even its appointments procedures to a
committee or sub-committee, or does it operate as a board? The hon. Gentleman must know from the earlier provisions in the Justice (Northern Ireland) Act 2002 that the judicial appointments commission to be set up in Northern Ireland will have the power to sub-delegate its work, including appointments, to committees, which will include people who are not even members of the JAC itself.
Mr. Carmichael: To be candid, I do not know the exact set-up in Scotland. However, applying first principles to it, I note that the hon. Lady says that it is a non-statutory body, so effectively it has power delegated from the Scottish Ministers. I imagine that those powers will be subject to the principle "delegatus non potest delegare"—one cannot delegate a power of which one has oneself been a recipient. Therefore, I imagine that it does not have that power. No doubt others will have applied their minds to that matter more carefully than I have. The power that exists under the 2002 Act is there, so I do not understand the parallel that the hon. Lady seeks to draw to my attention in that regard.
Lady Hermon: The hon. Gentleman said that the Scottish judicial appointments board had done a very good job. He was very complimentary about it. However, there is not a strict parallel with Northern Ireland, because the proposed judicial appointments commission in Northern Ireland will operate on a completely different basis. Those who have confidence that it will make appointments perceived to be much more independent than those made to date must look again at the power that it will have to sub-delegate its powers to appoint.
Mr. Carmichael: I am grateful to the hon. Lady for that intervention. I follow her point. However, it is perhaps for discussion in Committee rather than being an objection to the principle of the establishment of a judicial appointments commission in the first instance, which is essentially what we are dealing with on Second Reading.
The fact that although we have such a body in Scotland the sky has not fallen in and the world continues to turn on its axis should give some comfort to the Cassandras we have heard. The hon. Member for Aylesbury said that there were two contradictory principles—that the principle that the judiciary should be reflective of the community was somehow in conflict with the merits of the Bill. I take a rather higher view of the wider community than perhaps the hon. Gentleman does. I do not see why there is automatically a contradiction between the two principles. I do not see why a judiciary drawn from the widest possible range of the community should in any way be lacking in merit. That perhaps is the difference between me as a Liberal and the hon. Gentleman as a Conservative.
I defy anybody to say that the existing system, which relies on a lack of transparency and carries with it the suspicion that it works on the basis of nods and winks, is entirely merit-based. Having seen the performance of a number of their lordships appointed under that system, I certainly hope that there was some other
reason than merit for their appointment, because merit alone could not possibly account for their appointment: either that, or the assessment of their merit was poor.
Mr. John Taylor (Solihull) (Con): The hon. Gentleman will appreciate that I speak purely for myself these days, and not on behalf of my party. Will he not concede at least the possibility that if the best 20 judges were selected to serve a particular community they might all turn out to be Catholics, or, for that matter, to be left-handed? Surely the hon. Gentleman will concede that much?
Mr. Carmichael: Before I answer the hon. Gentleman's point, may I tell him that we miss his contributions to Northern Ireland matters. In the Committee corridor, we often hanker after the days of the Taylor test and we miss the Taylor doctrine. I am delighted that the hon. Gentleman is back with us dealing with Northern Ireland business.
The hon. Gentleman is absolutely right, that on an objective analysis, however the assessment is made, one could have 20 Roman Catholics, Presbyterians or left-handers, but one wonders just how well such a bench could serve the community as a whole, which is what we are dealing with today.
Mr. Taylor: The hon. Gentleman has been very kind to me this afternoon, but I must ask him this. Surely, once it has been accepted that the best 20 judges might all be Catholics, if the hon. Gentleman does not find that that would sit well with the acceptance of that bench by the community, is he not then intellectually already in the province of quotas?
Mr. Carmichael: Absolutely not. The difference between the hon. Gentleman and me is that I believe that we should examine the judiciary as a whole, rather than as 20 individual judges. We have to assess how the judiciary as a whole can best serve society in the widest sense. Twenty judges who are all left-handed, Roman Catholic, Presbyterian or whatever would not inspire confidence among the right-handed or ambidextrous part of the community, so they are not serving the wider community well.
Lembit Öpik: Does my hon. Friend agree that—[Interruption.] Actually, I happen to be left-handed. Although what the hon. Member for Solihull (Mr. Taylor) suggests is theoretically possible, does my hon. Friend agree that the prospect of having 20 Catholic left-handers chosen by accident is infinitesimal? In the real world, there seems to have been a lack of faith in the selection process in the past when improbable percentages came about, and people did not accept that the appointments were purely on merit.
Mr. Carmichael: My hon. Friend is right to lure me back into the real world and away from the world of the hon. Member for Solihull (Mr. Taylor), tempting though it is.
Mr. Carmichael: While we are on the subject, I would certainly enjoy a small sojourn into the world of the hon. Member for Ealing, North (Mr. Pound).
Mr. Pound: I thank the hon. Orcadian for giving way. Surely the fact that 50 per cent. of the entire Liberal Democrat Front Bench is left-handed—or, as we would say, sinister—shows that such things can happen!
Mr. Carmichael: I do not think that you have been listening during the last few minutes, Mr. Deputy Speaker, and I am absolutely delighted about that—[Interruption.]
Mr. Deputy Speaker (Sir Michael Lord): Order. I assure the hon. Gentleman that, whatever direction the Deputy Speaker is looking in, he is always listening. It would now be appropriate to get back to the meat of the business.
Mr. Carmichael: I apologise wholeheartedly, Mr. Deputy Speaker, for momentarily forgetting the full panoply of the powers at your disposal, and I am certainly more than happy to return to the subject of the Bill.
Mr. Geoffrey Clifton-Brown (Cotswold) (Con): The fact that 50 per cent. of their Front Benchers are right-handed and 50 per cent. left-handed shows that the Liberal Democrats can look both ways at the same time. Nevertheless, does the hon. Gentleman not accept—we will have to discuss the matter in detail in Committee—that there is clearly a tension between appointment on merit and appointment that is reflective of the community as a whole? The judgments that have to be made are difficult, but the Secretary of State was quite clear, in his introduction to the Bill, that merit was the first consideration and that being reflective of the community was secondary. Does the hon. Gentleman not concede that there is surely a tension between them?
Mr. Carmichael: Of course there is a tension, and it is a perfectly healthy, normal and natural tension. However, I do not believe that it is a tension that defeats the general principle of the establishment of the commission in the first place. My view is different from that expressed in the reasoned amendment, which the hon. Gentleman is inviting his colleagues to support this evening. We can only have the discussion that the hon. Gentleman said was necessary in Committee if the reasoned amendment is rejected.
Mr. Carmichael: I feel that I have already given way more than is healthy.
Mr. Pound: There is a new Deputy Speaker in the Chair to offend.
Mr. Carmichael: That being the case, I shall try to truncate my remarks and allow the hon. Gentleman, who is as capable as I am at antagonising, to speak.
I want to move on. Clause 6, which deals with influencing a prosecutor, takes us into territory that the Government often visit—criminalising conduct that is already criminal. I asked the Secretary of State how the provision differed from attempting to pervert the course
of justice, and he provided a lengthy answer about people who might want to write to a prosecutor to give reasons why someone should not be the subject of criminal proceedings, but also referred to other sorts of conduct that are not currently criminal. I am afraid that, by the end of the Secretary of State's answer, I was none the wiser; in fact, it will be no surprise to any hon. Member in the House if I say that I was not even better informed. [Interruption.] If the Minister can explain the difference between the offence in the clause and attempting to pervert the course of justice, we will listen carefully. I see no particular need for the clause, so it is for the Government to explain what they hope to achieve by it.Clause 7 deals with providing guidance to criminal justice agencies on human rights standards. On my initial reading, I thought it quite sensible, but the hon. Member for North Down (Lady Hermon) subsequently asked a couple of questions about what international standards would be the subject of the guidance. From my own experience, having reflected on the conditions of prisoners on death row in America, I know that there are a number of international conventions to which the UK is party—for example, on the treatment of prisoners—that might well fall under the wider ambit of the clause. That is just my best guess; I hope that the Minister will provide something more specific in his reply.
On clause 12, we heard an interesting rewriting of history from the hon. Member for Aylesbury on the issues of segregation and political designation. I thought the hon. Gentleman received good advice from the hon. Member for Cotswold (Mr. Clifton-Brown) who I thought told him as he dug himself energetically into a hole—I hope that the Hansard report will catch it—to "move on". Eventually, the hon. Member for Aylesbury took his hon. Friend's advice.
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