Justice (Northern Ireland) Bill [Lords]

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Mr. Swayne: I find that reasoning somewhat bizarre. To be genuinely reflective of the community, according to the minutiae that the hon. Gentleman defines in his amendment, the key question is how many male Catholics are disabled. Multiplying each minority by each minority will give us a genuinely reflective view in the way that he wants, but I do not believe that those statistics exist or that the quest is worth pursuing.

Mr. Carmichael: If the hon. Gentleman believes that such reflective composition is not worth pursuing, I feel sorry for him, although I am not particularly surprised by what he says. He is perhaps a little careless in his use of language and he might consider the difference between ''reflective'' and ''representative''. That is a significant point. We are not proposing a commission that is entirely representative in some statistical way. My point is that the information is already in the public domain,

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and it is possible, on an objective measure, to establish whether the commission will be considered reflective.

The same themes are pursued in the amendments tabled by the right hon. Member for Upper Bann, albeit in a different way, and I shall leave him to speak to those. I am particularly intrigued by the formulation in amendment No. 30, although I understand its genesis. I would love to see lay members with

    ''a sophisticated understanding of legal issues as well as proven experience in selection procedure'',

but I fear that that might exclude a lot of lawyers.

Mr. Trimble: I rise to support the hon. Member for Orkney and Shetland (Mr. Carmichael) on amendment No. 1 and to speak to amendments Nos. 30, 49 and 50. Clause 2, and subsection (1) in particular, changes the commission from being representative of the community, as provided in the 2002 Act, to being reflective. I am interested in the hon. Gentleman's point, which he rightly made, that ''reflective'' is less rigid than ''representative'', and that consequently any arguments for numerical relationships and proportions are less strong if ''reflective'' is used. That point is right and well made.

I also endorse the hon. Gentleman's point that although the Minister has often prayed in aid the criminal justice review and talked about how the Government are implementing it, clause 2 is a significant departure from the review's recommendations. The hon. Gentleman is right that the review is clear about the fact that issues in respect of people appointed to the Judicial Appointments Commission being representative or reflective should apply only to the lay members, but the Bill applies them to the judicial and other members as well. That is a significant shift and a departure from the criminal justice review. It is important to note that.

10.30 am

I have to say to the Minister that it is no part of the function of a judiciary to be representative of the community. Oh yes, it is a good thing for the community to have confidence in the judiciary, but the judiciary should be appointed, as the Bill makes clear elsewhere, solely on merit. The function of the judiciary is to adjudicate on issues that come before it, so the important thing for the judiciary is to have knowledge of the law and good judgment in applying it. Being representative is not the point; it is not relevant. Indeed, to talk in terms of the representativeness of the judiciary is to make a grave mistake.

This country does not have an elected judiciary, although the Labour party seems, in many ways, to be imitating all forms of US political action and social and legal structure. The reforms that have been touched on so far seem to have been drawn quickly from the American experience and sketched out on the back of an envelope with no real consideration, but this matter is worth consideration. We do not have an elected judiciary. In our system, it is not part of the function of the judiciary to be representative. Its members are there to be impartial and skilled.

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Mr. Spellar: The right hon. Gentleman will have noted that, although the criminal justice review used ''representative'', the Bill says ''reflective''. Does he think that the judiciary should not be reflective of the community?

Mr. Trimble: I repeat my point: the function of the judiciary is to judge impartially issues that come before it, to apply the law and to do so exercising good judgment. It is not part of its function to be representative. Even using the weaker term ''reflective'' does not allow us to depart from that basic principle. It is a good thing for the public to have confidence in their judiciary, and part of that confidence should derive from the belief that the judiciary is applying the law in a skilled and impartial way. Other considerations are not appropriate. I note that the Minister was unable to offer any reason why, on this matter, the Government have decided to go far outside the provisions of the criminal justice review in this significant way.

That is why I tabled the amendment, which would remove the words that in effect extend to all members of the Judicial Appointments Commission the duty to be reflective. How on earth will the duty for the commission as a whole—lay and judicial members—to be reflective of the community be exercised in practice? It is worth reflecting on the commission's composition. Five members are appointed by the Lord Chief Justice. A barrister is nominated by the General Council of the Bar of Northern Ireland, and a solicitor is nominated by the Law Society of Northern Ireland. Five persons, originally to be appointed by the First and Deputy First Ministers, are now to be appointed by the Lord Chancellor.

Four different parties—two persons and two bodies—therefore make appointments: two appoint five members each and the other two appoint one each. Those different parties are to produce a result that, as a whole, is reflective of the community, but how on earth will that be done in practice? How will the Law Society, in making its one appointment, carry out its duty such that the commission as a whole is reflective of society in Northern Ireland? In practice, that is impossible to attain; it is impossible for the Law Society to do this.

Does the Minister envisage the two persons and two bodies getting together and dividing out the members? Perhaps they will take the list suggested by the hon. Member for Orkney and Shetland. One will say, ''Well, I'll go and look for an ethnic minority representative.'' Someone else will look for a man and someone else will look for a woman. That simply is not practical. I wonder whether any real thought has been given to this, but considering the political origin of the provisions and the persons likely to have contributed to their construction, I am not surprised that little thought was given to them and that they are impracticable. The point behind amendment No. 1 is that it is inappropriate, and in any event impracticable, to apply the duty to the judicial members. In parenthesis, one can add that, as the hon. Member for Basingstoke said, our experience of this is not good.

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Paragraph 6.104 of the criminal justice review, part of which was quoted by the hon. Member for Orkney and Shetland, continues:

    ''The lay members of the Commission should be drawn from both sides of the community, including both men and women. This could be achieved through a legislative provision along the lines of section 68(3) of the Northern Ireland Act 1998 which provides that the Secretary of State should, so far as practicable, secure that the Northern Ireland Human Rights Commission is representative of the community in Northern Ireland.''

The hon. Member for Basingstoke will know that, of the various bodies referred to, perhaps the most risible appointments were those to the Human Rights Commission. The idea that the commission—in its first appointments or as it now exists—has ever represented the community of Northern Ireland is a bad joke. I remember the Secretary of State being unable to justify how the appointments to the commission reflected the political balance in the community in Northern Ireland. The majority political viewpoint in Northern Ireland was simply not represented on the commission. If that is how that provision operated, one wonders how this one will operate.

Amendments Nos. 30 and 49 are two different attempts to deal with the appointment of lay members. I say to the hon. Member for Orkney and Shetland that if I had to choose between the two efforts, I would prefer amendment No. 49. In this as in other matters, second thoughts are often better thoughts. It would be nice to think that we could find people who meet the criteria in amendment No. 30, but on second thoughts I prefer the terms in amendment No. 49. The hon. Gentleman will know—he read it out earlier—that this is the exact language of the criminal justice review.

I emphasise to the Minister that we should include those or similar words in the legislation. The reason for that lies in the fact that, in the event of devolution, the five lay members will be appointed by the First and Deputy First Ministers. The Minister should reflect on the comments made on Second Reading, particularly the view that all decisions are political. We must bear that attitude in mind. Some people in Northern Ireland regard everything as political. If someone of that cast of mind occupies the position of First or Deputy First Minister, they will approach lay appointments with political considerations in mind.

No names, no pack drill, but the Minister will see clearly a view expressed on Second Reading by one of the Northern Ireland Members that all appointments are political. That is the huge danger of creating this body. If the First Minister or the Deputy First Minister considers the appointment of lay members political, judicial appointments will be polluted by political considerations. That is not the criminal justice review's intention, which it is important to carry out.

 
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