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Mr. Mallon: The hon. Gentleman makes an interesting point, but is there a pristine measurement of merit in any walk of life? Is it not the case that many people of outstanding merit in the legal profession do not want to be appointed as judges because they prefer to do their existing job, and perhaps making much more
money? Similarly, in Government appointments, when were two people from the same party ever appointed European Commissioners? Are such appointments made on the basis of merit or on the basis of one from each side? Some methods of appointment are not peculiar to the north of Ireland.
Mr. Dodds: As for nominations or appointments to the European Commission, I have never doubted that they are made on a political basis. However, we are talking about something very different, as appointments to the judiciary are independent of considerations of political affiliation, religion or anything else. I do not object to the notion of a pool from which eligible candidates should be drawn, but we should strive to appoint the person best qualified to do the job properly. The Government have not gone down the route that they took on policing. They have defended a 50:50 discrimination policy on recruits to the Police Service of Northern Ireland, but in appointments to the judiciary, they are not suggesting the creation of a pool of candidates. There are not arguing that a Roman Catholic appointment has to be balanced by another appointment, or that a Protestant appointment has to be balanced by an appointment from the other community. In the Bill, they say that the merit principle should apply, and that action should be taken to try to promote a judiciary that is more reflective of the community. When it comes to policing a completely different attitude is taken, entirely as a result of political considerations. The merit principle is put to the back of the queue, and we are offered instead what amounts to a policy of discrimination against the Protestant community. In relation to the 50:50 provision—I must put this on record again, because it is not emphasised enough—the legislation speaks of Roman Catholics and others, and those others are comprised not only of Protestants, but of people of other denominations and from ethnic backgrounds.
Mr. Hunter: Before my hon. Friend leaves this subject, may I remind him of the point that I put to the Secretary of State? Although it is not stipulated in the Bill, the only conceivable way to implement the two guiding principles of merit and of reflecting the community is indeed by the creation of a pool of merit, which is precisely what is bound to emerge over time.
Mr. Dodds: My hon. Friend's suggestion has a lot of merit.
Surely, some consideration should be given to divorcing or separating the roles of appointing members of the judiciary and of undertaking the programme of action to ensure that they are separate functions for separate bodies. Clause 3 involves serious issues that will have to be discussed in detail in Committee.
Clause 4 deals with the appointment of the Lord Chief Justice and the Lords Justices of Appeal. I listened carefully to what Members on the other side of the House said about that. Concern has been expressed about those appointments being made by the Prime Minister on the recommendation of the First Minister and the Deputy First Minister. As was pointed out in another place, that effectively turns the Prime Minister into a glorified postman, because his role will simply be to implement the recommendation of the First Minister
and the Deputy First Minister. One can envisage circumstances in which it is not easy to get agreement between the First Minister and the Deputy First Minister on the appointment of a Lord Chief Justice. Alternatively, the decision could become mired in discussions about other issues or traded off as part of a negotiating process. That is not the proper way to go about appointing the most senior judge and law officer in Northern Ireland. My hon. Friends and I remain to be convinced of the merit of the proposal that the Prime Minister should simply accept the recommendation of the First Minister and the Deputy First Minister and automatically implement it without any discretion or consideration on his part.I was disappointed to hear the Secretary of State say that the Government intend to bring back their proposal to remove the Lord Chief Justice's power of veto in relation to dismissals from the judiciary. That measure was lost in another place, which was the right decision. As the independent head of the judiciary in Northern Ireland, the Lord Chief Justice should have the final say on a matter of such import as the removal from the bench of a member of the judiciary. At the end of the day, that decision should not be taken by politicians. The Lord Chief Justice, as head of the judiciary, should have a major say in it.
On clause 5, and the discretion of the Director of Public Prosecutions to refer matters to the police ombudsman, it is unnecessary to upgrade that discretion to a duty. The provision for discretion is sensible and should remain. There is discretion in all such matters; for example, in many cases, the DPP has discretion over whether to prosecute. That discretion should be exercised in the proper way, but to place a duty on the DPP to take that action come what may would be to put an unnecessary onus on him. I wonder how much time the DPP's office will spend combing through every aspect of every case to make sure that some aspect that should have been referred to the police ombudsman has not been overlooked. I hope that that will not end up as something else that distracts the DPP from the proper business of the administration of justice in Northern Ireland.
On clause 6, I agree with the hon. Member for Orkney and Shetland (Mr. Carmichael), who said that he was not entirely clear why it was necessary. It does not differ much from the common law offence of perverting the course of justice, so I cannot see why it has been included in the Bill—unless, again, it is because it was in the joint declaration. However, to return to the main point that I made at the outset, is that the test by which we should measure such provisions, or should we use the test of what is in the best interests of the delivery of an effective criminal justice system? The second of those should be the test. If the provision is not necessary, we should not go back to the joint declaration and say that it should be included just because it was agreed at Hillsborough some months ago by various parties. I do not even know how it was agreed, because the interesting fact came out of our recent discussions that some such agreements were made at the last minute on the back of an envelope—that may even apply to aspects of the Belfast agreement. We should not be hidebound on such matters, but should consider them on their merits to determine whether they are in the best interests of Northern Ireland.
I conclude with a reference to clause 12, on the transfer of prisoners. It is a sensible enough tool to add to those at the Secretary of State's disposal for dealing with security and safety inside Northern Ireland prisons. However, I share many of the reservations that have been expressed about the way in which some measures have been implemented inside Maghaberry in recent months. Will the Minister tell us what right of appeal there will be for prisoners who are told that they are to be transferred? What sort of pre-emptive action will he be able to take? Will he be able to transfer someone whom he thinks is disruptive or causing disorder, without any evidence of their having had occasion to resort to violence in a prison? There are obvious difficulties for prisoners' families, and some families in my constituency have expressed their concerns to me about difficulties in visiting. If someone is transferred outside the jurisdiction to a prison in England or Wales—or Scotland, if the necessary changes are made—that will add to families' problems in visiting. All those issues need to be addressed, but the clause should nevertheless be included.
We have strong doubts about the necessity of many parts of the Bill. Other parts, on their own, are meritorious and non-controversial, but the basic fact is that the legislation is being introduced for political reasons and as a result of the joint declaration. That is not the proper basis on which to introduce legislation. It should be done for proper reasons, not for the sort of reason that the Government have advanced today.
4.14 pm
Mr. Iain Luke (Dundee, East) (Lab): I rise to support the Government in this Second Reading debate on a further justice Bill for Northern Ireland. It is entirely correct that, despite the current stalemate in the progress of the political processes in Northern Ireland, we should be doing all that we can to ensure that all the pieces are in place to allow a fair, free and fully inclusive society to be fostered there. However, I look forward to the completion of the review of the Good Friday agreement and the peace process, and I believe that on conclusion of that review, political parties that still foster paramilitary links should not be able to enter the Northern Ireland Executive.
I have a great deal of sympathy with the model proposed by the Democratic Unionist party in its presentation to the review body, which looks at an organic, evolving committee system that will allow for the Assembly to be up and running and for cross-party dialogue at committee level, while ensuring that people who are not signed up to the political process and who still have paramilitary links are not allowed to play an effective role in the governance of the Province.
Like the Secretary of State and the hon. Member for Orkney and Shetland (Mr. Carmichael)—who is no longer in his seat—I, too, must express surprise at the negative nature of the wording of the amendment tabled by Opposition Members. In their argument for no change, they advocate the perpetuation of what many people in the Province feel to be a biased and unbalanced system of justice that favours one section of the community over the others—
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