Justice (Northern Ireland) Bill [Lords]

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Mr. Trimble: Again, I return to the fact that the Minister is talking about the confidence that he implies he would have in the non-commission members, who could easily form a majority of a committee or sub-committee. He implies that they are to be trusted enough not to have what they are doing overseen by the rest of the commission.

Who are these people? We do not know. They could be anybody. The duty that the commission should be reflective of the community that the clause provides for does not apply to the committee or the sub-committee—that is, unless the Minister wants to introduce an amendment. Why is there no provision about the character of the appointments? That is not a matter that the criminal justice review appears to have contemplated, although I stand to be corrected—and there are some here who are in a position to do so. However, the commission can delegate any of its functions to committees. That needs to be thought about carefully. We need to receive some information about that.

With respect, the Minister has provided no information at all. The delegation includes the core activity of the commission, namely making appointments. Surely we should know more about this. We are touching on the core matter—one that I consider of huge importance. He may be able to give more detailed comments later, and in the absence of some real explanation of this important issue, which some hon. Members might consider worth a vote, my inclination would be not to press it to a Division now. I want to give him a chance to return to it.

I should be anxious to pursue the matter on Report, if we get to Report, because it appears that a little paragraph tucked into the provisions will open up a huge hole in the operation of the commission. In view of the political and religious considerations, there is a need for something to be spelled out in detail. The Bill does not include that, and unless I have overlooked it, neither does any of the material that we have before us.

Mr. Hunter: I am grateful to the right hon. Gentleman for raising the issues covered by amendment No. 50, which I had not detected. It reveals a huge hole, as he said. The question is of the utmost seriousness, and the Government must surely pay attention to it. My initial reaction is that it is wholly unacceptable that, while the Government emphasise the idea of the commission as a whole being ''reflective of the community'', it should be possible for the constitution of a committee or sub-committee not to reflect that principle at all. That involves more than a tension. It creates a potential contradiction, and it is a point that needs to be seriously attended to.

I fully support the right hon. Gentleman on amendments Nos. 30 and 49. I share his deep concern about the concept of being ''reflective of the

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community''. It is fundamentally flawed and impractical to implement. As the amendments suggest, the only consideration should be the quality and qualifications of the people concerned.

As to the probing amendments tabled by the hon. Member for Orkney and Shetland, I thank him for his reply to my intervention about political requirements, and how far that matter should be extended. I understand his wish to sit on the fence for the time being, so we shall return to that later.

However, will the Minister, in responding to those probing amendments, deal with another issue that perplexes me? Let us suppose that the Bill is enacted and the Lord Chancellor and the other people responsible for making nominations set about trying to secure membership of the commission that is reflective of the community. What will happen if someone is disaffected or disgruntled? That could happen if an applicant was overlooked. I apologise if I am guilty of an oversight, but the Bill appears to me not to include any provision for that.

To whom should the disgruntled person bring a case? Should it be the Lord Chancellor, the very commission that rejected his application, or the Secretary of State for Northern Ireland? Are there, or should not there be, established procedures for such a person to follow? Who is to hold the Lord Chancellor responsible for ensuring that the commission is reflective of the community?

11 am

Mr. Grieve: This has been a lengthy debate, and I do not want to take up too much more of the Committee's time. Amendment No. 1 was the key amendment, but we have rather wandered away from the central issue, which the hon. Member for Orkney and Shetland very cogently explained.

The 2002 Act did not provide for judicial members of the Judicial Appointments Commission to reflect the community as a whole, but the Bill does. When the matter was considered in another place, various points were made about how difficult it is to find the right people to sit on the commission, given the small pool of judges from which candidates can be drawn. It is slightly strange, therefore, that we should introduce to the Bill a measure that provides—the Minister will correct me if I am wrong—for judicial members to be bracketed according to how they might reflect the wider community.

As the Minister knows, the Opposition support the principle that the judiciary should reflect the community as a whole, although we also emphasise that judges must be appointed on merit. Once judges are so appointed, when does one end the scrutiny of the commission's composition? Must every sub-committee reflect the community as a whole? That is the road down which the Government have chosen to go.

When members of the judiciary are being chosen from the very small pool of available talent to sit on the commission, it appears that the Government now think it appropriate that their religious background—

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that is what we are talking about—should be one of the factors considered. That bothers me.

I realise that circumstances in Northern Ireland are unusual, and heaven knows we have introduced enough legislation over the past few years to try to accommodate that, including setting up a system of devolved government of the most bizarre kind. I have always accepted it, given that it may be the only way forward, but the way it operates is, indeed, bizarre. This is my point: having chosen people to be judges—therefore, the assumption is that they are capable of discharging their functions without fear or favour and without bias—are we then to say that those who will sit on the Judicial Appointments Commission must be vetted for external appearances rather than on the basis of their judgment or whether they can make a proper contribution to how the commission operates? It bothers me that we are doing that.

We are breaking down the scrutiny of who is or is not to be appointed almost to the point of absurdity. I can see the force of the argument when it comes to lay representation, because that will be a highly politicised issue, but I ask the Minister to think carefully about taking the same approach with the judiciary.

I think that there is a majority of Roman Catholic judges in the High Court in Northern Ireland. I may be wrong about that, although I see that the right hon. Member for Upper Bann is nodding. I must say that I am totally ignorant of the religious affiliation of senior judges in Northern Ireland, just as I have not the slightest clue about the affiliations of judges in England. That is as it should be. Are we really to say that someone who would be right for appointment to the commission because he has taken a great interest in the recruitment of judges and in the professional advancement of those in the solicitors' profession and those at the Bar could not be appointed because the balance meant that the commission needed either a Protestant or Catholic? That would be most unfortunate.

It may be a distant aim, but we should be striving for a day in Northern Ireland when the question of people's religious affiliation is, as it should be, a total irrelevance. Then we could get rid of the complex legislative structure that tries to provide balance. If we cannot even make a start with those who have passed the scrutiny test in becoming judges in the first place, I despair. This troubles me, and I believe that amendment No. 1 has a great deal of force.

Mr. Spellar: There are several amendments and several issues to engage with. Amendment No. 1 would remove the duty to secure a reflective Judicial Appointments Commission from those responsible for making nominations to it—the Lord Chief Justice, the Bar Council and the Law Society. As the hon. Member for Orkney and Shetland rightly pointed out, amendment No. 2 is consequential.

Clause 2(1) will amend the 2002 Act to provide that the Judicial Appointments Commission as a whole should be, as far as it practicable, reflective of the community in Northern Ireland. Notwithstanding the commission's ability to delegate functions and roles to committees and sub-committees, which we have just

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debated at length, it is still a commission as a whole. We must consider the question whether the burden of reflectiveness should fall on the lay membership or on the commission in its entirety.

The provision requires the commission as a whole to be reflective of the community. Those who have the power to nominate members will have to play their part in working towards that objective, and it is not enough to require the Lord Chancellor alone to address reflectiveness when he does not have responsibility for appointments to the commission. Accordingly, I ask for amendments Nos. 1 and 2 not to be pressed.

Mr. Trimble: Before the Minister concludes on amendment No. 1, will he tackle my practical question on how the other bodies—the Bar Council, the Law Society and the Lord Chief Justice—will fulfil the duty that he is imposing on them? That is particularly important for the Bar Council and the Law Society, which each make only one appointment.

Mr. Spellar: I understand what the right hon. Gentleman says, but I again stress the point, which he has graciously accepted, that ''reflective'' is less prescriptive than ''representative''. We have moved away from the review in that regard. I accept that the objective will require those making nominations to consider arrangements between themselves on how this might be achieved, notwithstanding the fact that they must also consider appointments on merit. I understand that there are possible tensions between the two principles, but they are both extremely important.

 
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