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Mr. Trimble: I support amendment No. 4. It is right, largely for the reasons advanced by the hon. Member for Montgomeryshire (Lembit Öpik). I can reinforce his main point, which was that the criminal justice review recommended that the lay members should be representative of the community, which is understandable since they are there to represent the community. Judicial members, on the other hand, and those appointed to represent the legal professions, are not appointed to represent the community but are there to represent the judiciary and the legal professions. One might in turn hope that those bodies would bear some resemblance to society at large, but that is not the point. The point is that judges are appointed on merit and the legal professions are formed by persons who enter into them having complied with the necessary requirements and training. They are there to represent their bodies.

A fundamental mistake underlies the provisions before us. The original legislation was right and the new legislation in the Bill is wrong. I do not want to speak at great length on this point because we debated it in
 
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Committee, where I raised the particular provisions that the amendment would remove. The Bill lays a "duty" on those responsible for making nominations

"to make such arrangements  . . . as will, so far as is practicable, secure that the membership of the Commission is reflective".

They are placed under a statutory duty to make arrangements. I asked the Minister in Committee what arrangements would be made, and I was thinking especially of the Law Society and the Bar. Those organisations can each nominate one person, but how can they make that one person reflective of the community as a whole? How can they enter into arrangements with others to achieve that objective? Some possible arrangements would involve unlawful conduct.

We asked the Minister to give an indication of what the arrangements might be. In Committee, I asked:

"Will he also undertake to give either the Committee or the House on Report some indication of what arrangements he has in mind and how they will operate in practice?"

The Minister responded by saying:

"I certainly give the right hon. Gentleman that undertaking."—[Official Report, Standing Committee D, 25 March 2004; c. 32.]

Unless I have missed something, the Minister has not yet given us any indication of what those arrangements might be. I hope that at some stage in this debate the Minister will redeem his promise to me. I do not know whether any sensible or lawful—in the light of anti-discrimination legislation—arrangements can be made, and that is an important point because it means that clause 2 is wholly misconceived. If the hon. Member for Montgomeryshire wishes to press the point to a Division, he will have my support—of course, I act on behalf of my party.

Amendment No. 11, in my name, also addresses the issue of the lay members. Understandably and rightly, the criminal justice review said that the lay members should be reflective of the community as a whole, but it also added some further comments about who the lay members should be. Amendment No. 11 seeks to add to the Bill these words from the criminal justice review:

"The lay members should be selected on the basis of the additional value they would bring to the Commission's deliberation, including such qualities as experience of selection processes, the court users' perspective and the ability to assess the personal qualities of candidates."

It is important that those, or similar, words are inserted into the Bill; otherwise, it might become the practice that the lay persons can be anyone selected to represent an element of the community. That would be a departure from the intention of the criminal justice review. As the Minister knows, I am concerned that the way in which the commission is constituted will result in bringing a wholly unwarranted political influence to judicial appointments. The objective of the amendment is to try to minimise the addition of political influences on judicial appointments. Without the addition of the words of the criminal justice review, there is a danger that the lay members will become political appointees there simply to represent political viewpoints. If the legislation is left unamended, that is certainly what will happen, and that is why I would like the words of the criminal justice review to be written into it.
 
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Amendment No. 11 would also deal with another serious problem. Great effort is being made to ensure that the commission is representative of the community but, when it comes to how it will operate in practice, we find that, under the schedule to the Justice (Northern Ireland) Act 2002, the commission can delegate its functions to a committee that could consist of only one member of the commission. What is the point of trying to ensure that the commission reflects the community if it can then delegate its functions to a body that has no such requirements or standards?

The only safeguard is that at least one member of the commission must be on the committee. We must remember that we are potentially delegating to the committee the power to make judicial appointments, but no safeguards are provided as to the composition of that committee. The idea of delegating the entire function to the committee and enabling the committee appointed by the commission to make the appointments is, in itself, a mistake. If there is to be a committee that includes people other than those on the commission, we should by all means allow the committee to conduct the process of interviewing and deciding whom it feels are the best persons to be appointed, but it should report back to, and have its conclusions confirmed by, the commission. That would be much better practice.

4.15 pm

Amendment No. 13 attempts to provide a structure for the commission's committees. The Minister will no doubt recognise the language in the amendment. It would insert a new paragraph into schedule 2 to the Justice (Northern Ireland) Act 2002, and paragraph 8A(1) quotes word for word what the Minister said to me in Committee. I raised the point about the undesirability of delegating to a committee and having no provision about the committee's composition. He triumphantly told me that everything was agreed and that, with regard to the appointment of a High Court judge, the committee would consist of the Lord Chief Justice, a lay member and a judicial member. That is not a bad arrangement, but we would like to rely on something more than a comment made by the Minister in Committee. If he thinks that that is a desirable structure for a committee considering the appointment of a High Court judge, why does he not include such a provision in the Bill? That is precisely what paragraph 8A(1) would do.

Paragraph 8A(2) is again taken word for word from the criminal justice review, which recommends that, with regard to judicial appointments, a member of the judiciary

"at the tier to which the appointment is to be made"

should be on the Committee. It would be appropriate to have an analogous provision for appointments to the tribunal, and that point is covered in paragraph 8A(3), which states:

"A Committee for interviewing for appointments to a tribunal shall include a person with detailed knowledge and experience of the tribunal concerned."

That is wholly in line with the spirit of the criminal justice review.

In the debates on Second Reading and in Committee, the Minister time and time again pointed out that the objective of the Bill was to implement the criminal
 
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justice review. Amendments Nos. 11 and 13 would do precisely that. The challenge for the Minister is whether the words that he uttered in Committee and on the Floor of the House about implementing the committees to be set up by the commission are genuine. If they are, I expect him to accept the amendments and particularly those that would give effect to what he himself has said.

I am reminded of the request that I made at the outset that the Minister redeem the promise that he made to provide us with information about the arrangements that will be made to give effect to the Bill. As presently drafted, its provisions for the appointments by the judiciary and the legal professions are not capable of being implemented in practice. However, I shall wait to see what he has to say.

Mr. Andrew Hunter (Basingstoke) (Ind Con): Amendments Nos. 11, 13 and 25 embody arguments that the right hon. Member for Upper Bann (Mr. Trimble) made in Committee. I supported him then and I do now. If he has it in mind to press them to a Division, he will have the support of the Democratic Unionist party.

I want to put to the Minister an interesting issue that arises out of amendment No. 11, whose paragraph 8A(1) refers to lay members.

We know, of course, that devolved government in Northern Ireland has been suspended because one of the main political parties, Sinn Fein, remains inexorably linked to the IRA, and the IRA is one of the terrorist organisations that is continuing violence and refusing to decommission. The concept of being "reflective of the community" logically means that the composition of the commission should reflect Sinn Fein. To put it bluntly, that would be an intolerable state of affairs, especially in light of the recent Independent Monitoring Commission report. It is something that no true democrat could allow. I hope that the Minister will clarify whether his current thinking is that "reflective of the community" includes Sinn Fein representation on the judicial appointments commission.

I offer highly qualified support to amendments Nos. 4 and 5, and I shall explain why. As I shall argue in greater detail when I come to amendment No. 23, the reason arises from the fact that my hon. Friends and I reject the concept of being "reflective of the community". However, if that concept is to be part of the Bill and become law, it is essential that amendments Nos. 4 and 5 are accepted. Hon. Members have referred to the composite nature of the judicial appointments commission: five members appointed by the Lord Chief Justice; a barrister nominated by the General Council of the Bar; a solicitor named by the Law Society; and five people who were originally to be appointed by the First Minister and Deputy First Minister, but who are now to be appointed by the Lord Chancellor. The point has been powerfully made about how on earth those disparate bodies are to agree nominations that are "reflective of the community". Amendment No. 4 would put that responsibility solely in the hands of the Lord Chancellor, and it is the common-sense, practical way forward. If we are to have the concept of being "reflective of the community" enshrined in the Bill, the Democratic Unionist party supports, with the reservations that I have explained, amendments Nos. 4 and 5.
 
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The purpose of amendment No. 23 is straightforward and transparent. It addresses what was for many hon. Members, both Unionist and Conservative, a grave concern that we expressed on Second Reading and again in Committee. If the amendment were accepted, the Bill would require that

"The selection of a person to be appointed, or recommended for appointment, to a listed judicial office . . . must be made solely on the basis of merit."

No other consideration would be taken into account. We argue that the well-intentioned concept of being "reflective of the community" is fundamentally flawed and impractical. Only the qualifications and qualities of individuals should be considered when judicial appointments are made. There is a compelling argument to be made not only that proposed new subsections (9) and (10) undermine and weaken the requirement of subsection (8) that appointments should be on the basis of merit, but that, in practice, appointments reflective of the community would ultimately be incompatible with appointments based on merit alone. Nothing that the Government said on Second Reading or in Committee, and nothing that we have heard today, calms our fears on that issue.

The Minister argued on Second Reading and in Committee that confidence in the judicial system is imperative. No one disagrees with that, but I do not accept that there are any shortfalls of confidence in Northern Ireland's judiciary worthy of merit, or that there is any need for the provisions contained in new subsections (9) and (10). Indeed, those provisions are more likely to undermine confidence in judicial processes and procedures than to promote it. I ask the Minister a simple question: where is the evidence to support the allegation that Northern Ireland's judicial system and the judges who are an integral part of it are unfair or biased? The truth is that there is no lack of public confidence in the judiciary—quite the reverse. The judiciary of Northern Ireland, appointed as it has been by the Lord Chancellor, has justly earned a superb reputation for its fairness and impartiality, to say nothing of its courage and dedication to the rule of law. Members have been appointed solely on merit without creating any significant or telling imbalance. Public confidence in the judiciary has deservedly been very high indeed.

We know that the concept of being "reflective of the community" has replaced that of being "representative of the community". Perhaps that is a small step in the right direction, but adopting "reflective of the community" is a dangerous move toward the mistaken and utterly fallacious approach of seeking equality of outcome—a 50:50 outcome. Concern about "reflective of the community" is compounded when we recall that the genesis of the Bill lies in the March 2003 Hillsborough declaration—a measure that emerged from wheeling and dealing to re-create the climate that would enable the restoration of devolved government. That is not a sound basis for legislation and it does not command confidence. We should remember also that equality of outcome and approaches designed to secure it were neither sanctioned nor remotely justified by the Belfast agreement. Equality of outcome is not what the Equality Commission is charged to achieve or what is meant when human rights instruments speak of equality. In all those cases, the reference to equality
 
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means equality of opportunity and the requirement that individuals are treated fairly. That is already the case in judicial appointments and no additional legislation is needed.

In Committee, I drew attention to the Minister's words in his winding-up speech on Second Reading, when he said:

"The criminal justice review, which the Bill builds on, is about modernising the system of appointments in line with the changing needs of society."——[Official Report, 10 March 2004; Vol. 418, c. 1616.]

Those words encapsulate a fundamental difference in thinking between the Government and Opposition Members. The Minister argues that the judicial system must be modernised to keep in line with the "changing needs of society". Of course society changes constantly and institutions adapt—they evolve with changing circumstances. Our quarrel is with the imposition of change by legislation when changes should be allowed to happen through evolution.

We feel especially strongly about judicial appointments because we do not fall for the line that the Bill sets out to modernise the appointments system. The Bill politicises appointments. The system of appointments has been dragged into the sphere of politics to serve a political purpose demanded at Hillsborough. We certainly support a system of transparent, open and fair judicial appointments, one that is free from political intervention and politicisation, but we do not believe that that objective can be achieved by new subsections (9) and (10).

The matter is one on which we feel sufficiently strongly to wish to divide the House. None the less, I look forward to hearing what the Minister has to say.

4.30 pm

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