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Mr. Mallon: I shall try briefly to make a rather broad point and to challenge an assumption that I have heard on at least four occasions so far in the debate—that somehow or another, if one has a political view, be it Unionism or nationalism, a Labour view or a Conservative view, one cannot be reflective of the community in which one lives. We should challenge that.

It was astounding that the entire thesis of the hon. Member for Montgomeryshire (Lembit Öpik) verged on a quasi-political, quasi-religious definition of a community. A community is not a sectarian football match or two sectarian teams. It is much deeper and much more fundamental than that. There are many more strands to it. Let me put it this way: when I sit on these Benches, I hope I am reflective of the community that I serve. I have no doubt that Members who sit on the other Benches hope that they are reflective of the communities that they serve. Even though many people in the community would not see me as representative of their political views, they might very well see me and others as being reflective of the type of standards that one might require in the whole political process.

We should challenge the notion that the matter is to be seen in little boxes: there goes the nationalist representative, and there goes the Unionist representative. How do we make room for the
 
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Democratic Unionist party representative, then get the republican representative in and, just to keep everything right, squeeze an Alliance person in at the end? It is not like that. Those attitudes are not reflective of the community in the north of Ireland. With all its problems, the community is much bigger than that and much wider. That is where we should look carefully.

There is a second element that we should consider—the extent to which those whom we charge with the protection and implementation of law are aware of what makes people tick in the community in which they live. I pose that question because there is an ivory tower attitude in some parts of the north of Ireland, whatever the political or religious views of those with that attitude. For far too long that ivory tower attitude was preserved in the legal profession. In that community there was a special place—an ivory tower—that was protected and is still being protected by the legal profession.

I noted the fine speech made by the hon. Member for Basingstoke (Mr. Hunter). I detected the tones of legal hurt in his speech, almost a confirmation that people have at last had the audacity and, in my view, the good sense to start knocking on the walls of the ivory tower and rattling a few of the cages inside it.

Lembit Öpik: I am listening to the hon. Gentleman's comments not just about the ivory tower, but about compartmentalisation, which he does not consider an appropriate way forward. Surely he recognises that his support for the Government's arrangements causes more compartmentalisation by creating an artificial requirement, beyond the lay members, to achieve the kind of outcome that we all want in principle, although it is hard to see how we can achieve it in practice without more stress and more friction.

Mr. Mallon: I thank the hon. Gentleman for that point, but I do not agree with it. Returning to my original thesis, the reality is that one can be of a community without representing every political or religious view within it. One can bring an ethos that people who do not share one's political or religious views recognise to the legal profession, politics or anything else. That is why it is right to challenge the notion advanced by the hon. Gentleman and others, and to point out that rattling the legal cages was necessary to create a broader approach. If one examines the history of the legal profession in the north of Ireland, one must admit, perhaps grudgingly, that it was the preserve of a very few, whoever they may have been and whoever chose them.

Mr. Dodds: The hon. Gentleman talks about rattling the legal cage. On judicial appointments, can he indicate where the current appointments to the senior bench in Northern Ireland—the Lord Justices of Appeal and the Lord Chief Justice of Northern Ireland—fail to reflect the community?

Mr. Mallon: I am not saying that those appointments fail to reflect the community; I am saying that there has been great resistance to the change, and that resistance remains within the profession. The hon. Gentleman entices me to do what I am arguing against—to label people in political or religious terms—and I will not do
 
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so. I repeat that one does not have to reflect the political or religious attitudes of all the people within a community in order to represent them.

In this House, we are all elected, but does that mean that all hon. Members reflect the constituencies that elect them? I do not believe so. There is another part of this Parliament, and it bears examination, too—I do not want to stray into a different debate, but I hope that that matter will be resolved soon. The right hon. Member for Upper Bann (Mr. Trimble) is delighted, because that issue is an obvious advantage for him and his party, but the hon. Member for Belfast, North (Mr. Dodds) does not delight in it. Perhaps things will change when appointments do not reflect the community, but deal only with this terrible thing—the danger of the influence of politics in appointments. I leave the matter there.

Finally, there is a pristine honesty about those who consistently tell us that there should be no political input to judicial appointments, within a system where, as in the Republic of Ireland, judicial appointments are made by the political process.

I am as keen as the right hon. Member for Upper Bann or anyone else to ensure that political opportunism does not apply to judicial appointments, but let us at least be honest when we consider the arrangements in the Bill. I could make very strongly some points about appointments outside Northern Ireland. I could refer to the two Governments who, as the hon. Member for Basingstoke alleged, proposed this legislation at Hillsborough. I do not intend to stray into making those points, but I say this: I wish to challenge the notion that one cannot be reflective of the community if one does not share the political views of all the people in it.

In that context, we must reconsider the distinction that has been made between appointments among the legal profession and appointments of lay people. That has a tinge of ivory tower syndrome: it suggests that it is okay to have a certain arrangement for lay people but that we must not, for heaven's sake, have it for the people who have come within the compass of the ivory tower. It should apply to everybody, because the whole thesis of reflectiveness is such that such a distinction cannot be made.

Mr. Hunter: I confess that the hon. Gentleman's argument has left me completely bewildered. Is he effectively saying that appointment should be by merit alone, so amendment No. 23 should not be supported?

Mr. Mallon: I believe that all appointments should be made on the basis of merit that is reflective of the community. I remember—this may be before the hon. Gentleman's time and too far back for many people's memories—when people were appointed to the bench in Northern Ireland who had never been seen in the north of Ireland before: they had been educated and had practised abroad, and all of a sudden they were senior judges in the north of Ireland. That arrangement is not reflective of the community. I thank God that the days are gone when only those within big house Unionism got on to the bench in the north of Ireland, and I should like to think that hon. Members within the Unionist community would support me in that. I notice that the right hon. Member for Upper Bann is getting excited. I shall try to end that situation for him.
 
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I believe that this measure is needed. We should not give a position of privilege to people in the legal profession, who already have the huge privilege of administering the law that Parliament makes for them. That should be privilege enough, without our copper-fastening it for them.

Mr. Garnier: The hon. Member for Newry and Armagh (Mr. Mallon) had the privilege of serving on the Standing Committee on the Bill that became the Justice (Northern Ireland) Act 2002, and we had the pleasure of listening to many similar speeches from him. He and I disagreed on the need for the judiciary and the judicial appointments commission to be

"representative of the community in Northern Ireland",

as section 3(8) of the 2002 Act states. Although we disagreed about the need to lay that down in statute, I could understand the worries felt by the hon. Gentleman, people like him, people whom he represents, and people whose views he reflects.

4.45 pm

I do not happen to believe that justice is capable of being described in the terms that lie behind the 2002 Act and this Bill. However, to use a disgraceful and awful expression, we are where we are. Nonetheless, I am no more convinced of the need for the adjective "reflective" than I was, during the Standing Committee in 2002, of the need for the use of the word "representative". I am provided with some hope, however, when I see the words "of the community" which follow "representative" or "reflective". To me, the concept of community does not include those outside the law or those who wilfully seek to destroy our democratic institutions through terrorism, violence or subversion.

If the Government are honest to us, to the people of Northern Ireland and to those who wish to be appointed to the judicial appointments commission, they will make it clear that they will not seek to reflect or represent on the commission people who come from the terrorist and anti-democratic organisations. They will also make it clear that they will allow nominations to be put forward only from those groups, of whatever tradition, which are wholly signed up to the institutions of a democratic Northern Ireland and a democratic United Kingdom, and which believe that judges and senior judicial officers will do justice irrespective of their origins and the origins of the people over whom they will give judgment.

I know that the Government have great faith in the judiciary of Northern Ireland. The Lord Chancellor invited Lord Hutton, one of Northern Ireland's most distinguished judges, to chair the recent inquiry into the death of Dr. David Kelly, and there are many others like Lord Hutton who have served and continue to serve on the Bench of the Northern Ireland judiciary. When these judges try cases, be they criminal or civil cases, they do not say, "Ah, I am now dealing with a case involving an allegation of breach of contract. I will try it in a Protestant way", or "I will try it in a Roman Catholic way", or "I will try it in a Sinn Fein way", or "I will try it in an Ulster Unionist way". They try each case on the facts, and by applying the facts to the law.

Similarly, I feel sure that, when those judges are dealing with criminal cases, either with a jury or in a Diplock court, they do not treat the defendant in a
 
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particular way because he is a Protestant or a Catholic. They say, "The Crown has alleged the following, and I must assess the evidence laid against the defendant in support of the charge." If the defendant is convicted either by the jury or by the judge—after the judge has considered the matters before him to the requisite standard of proof—he will then be sentenced according to law. I know that the law in Northern Ireland is—as it is in England, Wales and Scotland—blind to the origins of the person in front of the sentencing judge, save only in relation to studying the pre-sentence report to ensure that a just decision is made in relation to that individual.

So we do not really need a judiciary—and, still less, a judicial appointments commission—which is reflective or representative of the community in Northern Ireland.

That is because, it seems to me, the matters of the rule of law and how judges behave are over and above, as well as separate from and not prepared to take account of, the community, except in the special circumstances of a pre-sentencing report.

I hope the Government can reassure me and the House that when they push through the amendment to the 2002 Act by way of a clause of the Bill, which we are considering through the prism of the amendment—they will do so, as they have the majority in the House—they will ignore wholly in respect of the term "representative" or "reflective" that part of the Northern Ireland population which is distinguished from the Northern Ireland community and which advocates terror and suborning the civilised and democratic institutions and court system in Northern Ireland.

I want next briefly to discuss the amendment tabled by the right hon. Member for Upper Bann (Mr. Trimble) in relation to the committee, or sub-committee, of the JAC that could appoint a judge. It looks very worrying. Schedule 2(8) of the 2002 Act says:

"The Commission may establish committees."

Schedule 2(3) says:

"A committee or sub-committee may consist of or include persons who are not members of the Commission."

That is fine if people are ordering biscuits or furniture for the commission, but if they are appointing judges they are moving into different territory altogether. Up to a point, that is catered for by paragraph 12 of schedule 2, which states:

"If the function of selecting a person for appointment, or recommendation for appointment, to an office is delegated to a committee or sub-committee, the committee or sub-committee must include a member of the Commission and, unless he is a lay member, a person who is eligible to be a lay member."

Well, I am not sure that that went far enough to protect the integrity of the judicial appointments system, but this Bill makes me even more concerned and I share the right hon. Gentleman's anxieties.

Everything we do in the House is tinged with politics. My hon. Friend the Member for Basingstoke (Mr. Hunter)—I think he is still my hon. Friend—is a little na-ve in thinking that we can pass legislation untouched by politics, even when we are discussing something as apolitical as the judiciary. He is perfectly right, however, to advance the arguments that he and his colleagues have advanced in his attack on the clause that he seeks to amend, because the Government seek not only to
 
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introduce to the judicial appointments commission and the judicial appointments system a less safe system of appointing judges on merit, as the right hon. Member for Upper Bann suggested, but, to go further, to provide for a system for the appointment of judges that could skew that system against selection purely on merit towards selection of judges on some other either directly or quasi-political basis.

That concerns me, because as I said at the outset the appointment of our judges and how they behave should be wholly outside the realms of politics. Even in this jurisdiction, for the moment at least, the Lord Chancellor—although he is a politician to some extent, or at least a party political appointee—has selected judges in England and Wales wholly uninhibited by political consideration.

I say that of the current Lord Chancellor, I was happy to say it of Lord Irvine, the previous Lord Chancellor, and I dare say that it was equally true of their predecessors in Conservative Governments. It seems to me, however, that we should not expect the people of Northern Ireland to have judges of any other quality than the very best, selected for any other reason besides legal and judicial merit. To add into the selection process these extraneous and confusing reasons will lead to trouble.

I hope that the Government can reassure me on the points that I have raised, because matters related to justice are easily written off as boring, or a lawyer's whinge, when they are so important for the system of democracy in both the jurisdictions of Northern Ireland and England and Wales.

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