Justice (Northern Ireland) Bill [Lords]

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Dr. Palmer: Underlying the right hon. Gentleman's concerns on this and the previous clause is the assumption that lay members might be politically motivated and might overrule judicial members to appoint someone not as unbiased as one would wish. Does he not agree that because of the narrow majority of lay members it would require an almost unique cross-party agreement between lay members from all

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parts of the Northern Ireland political spectrum to overrule the view of the judicial members?

Mr. Trimble: The hon. Gentleman could have made that point even more strongly. As I read it there are five lay members of a commission of 13. They are therefore in the minority. Clearly they could never overrule a decision, but where a committee is making a collective decision, any person on that committee can influence that choice. I do not imagine that any member of the commission would explicitly state political factors in favour of appointments—or I hope that members of the commission would not do so—but I will not go back into history. I have already been chided by the Minister for referring to 1920.

If 13 people are choosing between various persons and are doing so by a majority decision, one, two or three members could sway that vote. They could do so for unexpressed political considerations if the persons appointed were of a political character. I referred to the comments made on Second Reading, which I believe show that some lay appointments would be made for political considerations. That is the danger to which this provision of being representative/reflective opens the door.

If some people are appointed for political considerations, it is likely that they will allow those political considerations to condition their approach, which might sway the appointment that is made. That is a huge danger. It is part of the reason why I have come to the conclusion that this concept, either generally or more particularly in Northern Ireland, is bad and will lead to political considerations being introduced to judicial appointments. Some hon. Members may be content with that. I am not.

If we have this commission—I would rather that we did not—we should ensure, in so far as we can, that the lay members are not of a political character. I do not think that the criminal justice review intended that they should be. That is why it is highly desirable to include in the Bill the following words from the review:

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

Amendment No. 50 is extremely important, particularly in the light of the comments that I have made. It relates to paragraphs 11 and 12 of schedule 2 to the 2002 Act on the operation of a Judicial Appointments Commission and delegation in particular. Paragraph 11(1) states:

    ''The Commission may delegate any of its functions (to such extent as it determines) to any of its committees.''

The committee can therefore exercise those functions; this is not simply a question of it considering the matter and reporting back.

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Furthermore, paragraph 11(2) states:

    ''A committee to which a function has been delegated may further delegate it (to such extent as it determines) to a sub-committee.''

We are moving further away from the 13-member commission. A sub-committee could exercise a

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function, not just consider a matter and make a report with recommendations to the full commission, but actually delegate that function.

Furthermore—this is where the real evil lies—paragraph 12 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,''—

it is clear that the committee or sub-committee can make the appointment without reference to the commission—

    ''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.''

One can therefore delegate to a committee or sub-committee that contains persons who are not members of the commission, and the only requirement for commission involvement is down to one person if it is a lay member. There could thus be a situation in which the commission delegates its functions to a committee that includes people who are not members of the commission, but nothing is said about who the other members of the committee should be. We are talking about the commission and how it is made up—appointed by the Lord Chief Justice, the Bar Council, the Law Society and the Lord Chancellor—and we have said that the commission must be reflective or representative of the community, but the functions can be delegated to a committee, and nothing is said about the other members of the committee, who could be anybody.

There is a huge error in the proposal, and it is open to massive abuse. It is technically open to a sub-committee that consists of a lay member, plus other persons who are not members of the commission, to make an appointment. This is a very bad provision, and I want the Minister to think carefully about it. The amendment would considerably confine the proposal.

Mr. Spellar: May I clarify the right hon. Gentleman's point? Paragraph 11(1) puts the ability to delegate in the hands of the commission, so any decision to delegate to a sub-committee would be a decision taken by the commission. It is not an external appointment of sub-committees but the commission itself deciding how to run its own business. Why does he have difficulty with that?

Mr. Trimble: Because very important functions are given to the commission, especially with regard to appointments. What is the point of having a Judicial Appointments Commission if that commission is authorised to delegate its function of making appointments? The whole concept is wrong. Why are there detailed provisions about the make-up of the commission and the character of people on it if a little paragraph in a schedule gives the commission the capacity to delegate the function to what is effectively another body?

Mr. Spellar: Because it is the ability of the commission to make such a decision, especially when it is responsible for about a thousand posts in Northern Ireland, and not just in the court and the High Court—it goes wider than that, and even includes tribunals, as the right hon. Gentleman

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knows. For example, it may be argued that to have the president of a tribunal engaged in the appointment of tribunal members is desirable practice. However, I return to the point that the delegation of the powers is in the hands not of Ministers but of the commission, which can therefore sensibly manage its own business. I have confidence in the commission to do that.

Mr. Trimble: I come back to the huge scope of paragraphs 11 and 12. The Minister argues that there might be occasions on which it is sensible to have a committee or sub-committee. Perhaps, but why delegate the entire function? Once a function is delegated, the commission is dependent on the commission members in the committee or sub-committee for information about what is going on. The link can get so tenuous as to be down to a single person, particularly if that person is a lay member who reads into the provisions the justified concern that I have expressed about how they might be appointed post-devolution. The provision is dangerous.

Mr. Spellar: To clarify the position, I repeat that the commission itself will delegate power and that a majority of its members are from the legal profession in one form or another. However, it seems to me that if responsibility for appointment was delegated, but those who had been so delegated had to report back to a body that could overturn their decisions, there could well be an absence of due process. Those who have been appointed on the sub-committee will have interviewed the candidates and formed a judgment of their qualities. To have that decision overridden by those in the commission who were not involved in the interview process would cause difficulties in the commission's conduct. Those who went through the initial process might also have a legitimate cause for complaint.

Mr. Trimble: The Minister is arguing against himself. There is a huge contradiction in his argument. He started by saying that the creation of the sub-committee was the work of the commission and that we should trust the commission to carry out its functions. He then said that it would be wrong for a committee of perhaps only one person, to which the power to make certain appointments had been delegated, to report back to the commission as a whole, so that the other 12 might consider any decision. He thinks that that would be a bad thing. Either he trusts the commission or he does not. If he trusts the commission enough to enable it to delegate functions in that way, why does he not trust it to oversee those functions? There is a huge contradiction in his approach.

Mr. Spellar: I think not. If the commission thought that process had not been correctly conducted, it might be appropriate for it to do what the right hon. Gentleman describes. However, it has delegated those powers because it has confidence in the persons whom it has appointed to the sub-committee to make a judgment based on the interview, the information and the impression that they form of the candidates. The issue is not the integrity or the judgment of any member of the commission. The important point is

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that those members of the sub-committee have been able to avail themselves of all the facts. The ability to delegate the relevant function to the sub-committee would indicate that confidence. I do not see that that is an abuse of process.

 
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