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Mr. Mallon: The right hon. Gentleman is making many very interesting points, and I hope to reconvene our discussion when we are dealing with policing, rather than the judicial system.
Mr. Trimble: I raised the issue in order to tease out the mistake that has been made, which is to think that equality operates in terms of group rights, rather than individual rights. We must always remind ourselves of that point.
My hon. Friends and I will support the reasoned amendment because the terms in which it is expressed focus attention on the Bill's first seven clauses, which are ill-advised. Indeed, the provisions relating to the judicial appointments commission, which are central to those clauses, are particularly ill-advised. It is on appointments and the resulting creeping-in of political influences that the reasoned amendment focuses, because clauses 8 to 14 in fact contain a number of sensible, if somewhat modest, measures.
As other Members have said—I shall not dwell on this point—the Bill has been introduced out of purely political considerations, which are contained in the first
half of it. The second half is the result of the Northern Ireland Office's efforts to make use of a suitable vehicle for long-overdue changes. As was pointed out to the Minister, it is a pity that he was not a little more imaginative and energetic in introducing other necessary and desirable measures for which the Bill could act as a vehicle. It is also a pity that he has crafted a long title so restrictive that it prevents Members from using the Bill to rectify some of the mistakes that he has made. I hope that between now and when we meet in Committee, he will reflect on that point and adopt a more liberal and generous approach.The provisions relating to the judicial appointments commission—the central issue—are premature. They were largely enacted in the 2002 Act and were designed to operate after devolution. As has been pointed out in interventions, the criminal justice review recommended the commission because of devolution—it did not recommend that it operate before devolution. It is quite remarkable that Labour Members, who keep talking about the need to stick closely to the terms of the criminal justice review, are themselves acting inconsistently in respect of the Bill and its central provisions. Again, that points to the political motivation that lies behind this legislation. My colleagues and I have never been able to see the nature of the political gain that some Labour Members think this legislation will provide. We do not quite understand the overriding political purpose of the Bill's proponents.
When the notion of a judicial appointments commission first came to light in the criminal justice review report, I was generally welcoming of it. I did not criticise it at the time, and it seemed then a reasonable concept—I am talking about the concept, rather than the detail—that was not terribly controversial, and which might prove useful. I did not reflect upon it deeply then, but I have since, and the more I have done so, the more I have concluded that it is a bad idea. I am referring not to the detail, but to the concept itself as it will operate within our system, in contrast with what went before.
There is a paradox in this regard. At the moment, senior judicial appointments are made by the Lord Chancellor, who is a quasi-political figure and a member of the Cabinet. Some people have got exercised about this issue, because they think that a fundamental principle involving the separation of powers is being breached. But anybody who knows anything about British political life and history knows that our arrangements have never been based upon any concept of separation of powers—they have evolved in a more complicated way—and that there are positive advantages of the system that has evolved here in the United Kingdom, not only in the concept of the Lord Chancellor, but in the presence in another place of the Law Lords and in the presence in Parliament of people who can answer both here and there on behalf of the prosecuting authorities. We had an example only last week of the advantage of that and of how we would suffer as a House if a crude separation of powers approach were adopted. But, then, if one followed a crude separation of powers approach one would remove the entire Treasury Bench from this place. [Hon. Members: "Hear, hear."] Some hon. Members indicate assent to that. I presume they are thinking of the present
Treasury Bench rather than all Treasury Benches on all occasions. I must repeat that it would be very bad for our political system if that sort of crude separation of powers approach were adopted.The paradox is that, although superficially the present arrangements for the appointment of judges may appear open to political influence, in practice with the proposed commission there will be a greater danger of political influence over judicial appointments. I came to that conclusion thinking, by way of analogy, of some of the judicial procedures we have experienced in Northern Ireland. The jury-free trials, the Diplock courts, may have seemed in theory to be risky in terms of judicial standards. In fact, they were very successful. Someone on the Criminal Cases Review Commission told me not long ago that per capita it had fewer applications alleging miscarriages of justice from Northern Ireland than from any other part of the United Kingdom, which it attributed to the success of the Diplock courts. Why was that?
The key point was the sole, undivided responsibility that lay with the single judge.The same factor can be seen with regard to judicial appointments. The Lord Chancellor makes the appointments—yes, after consultation—and carries the sole, undivided responsibility for them. If it becomes clear at any point that there are questions about the merit of appointments, there is no doubt about who is responsible. The Lord Chancellor knows that if he were to err and set aside considerations of merit for some reason of political or other advantage, the responsibility would lie with him and nowhere else.
So the paradox is that appointments by an individual who has a quasi-political role tend not to be infected by political considerations, but with the judicial appointments commission there is a very serious danger. The commission proposed in the Bill will have a chairman and 12 other persons, seven from the judiciary and the legal professions and five lay members. If there is devolution, the lay members will be appointed by the First Minister and Deputy First Minister. If there is not, they will be appointed by the Secretary of State, the Lord Chancellor or whoever.
That has to be taken with the injunction that the members shall be "reflective of the community". People will think of "reflective" in political and religious terms in Northern Ireland, and will think that they have to bring forward people with those labels on them. Those persons will know that they have been appointed because they have those labels, and will have a sense—implicit, not explicit—that it is their job in the commission to represent the interests of those whose labels they bear, because that is what led to their appointment. They will feel that it is their job to ensure that people who share their labels, which got them into the commission, are appointed. That will bring political considerations—again implicitly, not explicitly—into the operation of the commission itself. It does not mean that every recommendation that flows from it will be tainted, but some appointments will be affected by political considerations. The structure brings political considerations into judicial appointments in a way that does not apply under the present arrangements.
I am not saying that the present arrangements are perfect. There may be good reason to reflect on whether a broader range of people could be considered, but we should bear in mind the fact that, in respect of judicial appointments, a broader range could come only from persons qualified to be appointed. That necessarily means a segment of the population that has already gone through various processes, which to some extent detaches them from the population as a whole—but that is by the way. My main point, after comparing appointments in the past with the proposed new arrangements, is that I have come to the conclusion that the proposals are dangerous and that the existing arrangements are better and more likely to exclude political influence. It is a paradox, but life often proceeds in that way.
Other criticisms could be, and have been, made by others, but I have dwelt on that main point to explain what influenced my change of approach to the concept. As I said, I was first favourably inclined, but on further thought, I reached the conclusion that it is not a good idea. The other criticisms, already touched on, go back to the concept of being representative or reflective. The hon. Member for Belfast, North (Mr. Dodds) asked how it was possible to be reflective and what it would mean when someone is making one, two or three—or in some cases, five—appointments. The whole process is unclear and bristles with difficulties. Our experience in that matter is not good.
When I examined the criminal justice review earlier today and saw that it introduced the suggestion that the commission or lay persons appointed be reflective or representative of the community, I noted that it expressly referred to the Human Rights Commission as an example in support of the concept. It might have been possible to view the Human Rights Commission with rose-tinted spectacles when the review was written, but is there anyone anywhere in Northern Ireland today who believes that the present Human Rights Commission is a good thing, or that it did not do a botched job of its appointments and operations? Few would dissent from that view now.
It is important to try to analyse why the Human Rights Commission did a botched job of its appointments. It may be that the Secretary of State at the time decided as a final act of revenge that she would make a whole set of bad appointments to screw up the process in Northern Ireland. Some people hold that view, and I am not saying whether I hold it myself. It may be the case, but it is somewhat unlikely, on balance, that that was the sole reason for what happened. There are other reasons. I suspect that some of the officials involved in the process thought they were doing a reasonable job, but I have reason to believe that some of them now feel deeply embarrassed about what happened.
Why did well-intentioned people end up producing such a terrible result? Part of the reason is the fact that the persons doing the job were not organically connected with society in Northern Ireland and did not fully understand what they were dealing with. I am almost tempted to call it the Dundee, East syndrome, but that is another issue. There are other factors as well and I suspect that the criteria adopted for appointments were what led to the result. Again I would suggest to those who may have responsibility for making
appointments in the future that they reflect very seriously on the Human Rights Commission experience and work out for themselves what went wrong. They should try to ensure that we do not reach the same position again in future. In terms of this Bill and these proposals, I would say, "Don't create the judicial appointments commission; don't get into that problem again."Similar proposals were considered in another place on Monday night—and we know the result of that. I was listening to Lord Goodhart giving his views on that matter on the "Today" programme yesterday, and I paid particular attention because the position of the Liberal Democrats within the structure of the House of Lords is not without some significance. I was trying to work out what could possibly have persuaded a person who I think is knowledgeable to favour the Bill.
Lord Goodhart said that the judicial appointments commission had to be set up as a matter of urgency. He conceded that things had not been too bad under the last couple of Lord Chancellors, who were decent chaps, but he said that we still desperately needed a judicial appointments commission to protect us from what might happen in future. Decoded, that means that he favours a commission because he is so appalled by the idea of what might happen under the present Lord Chancellor, and under future Lord Chancellors who might be appointed by the present Government.
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