Justice (Northern Ireland) Bill [Lords]

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Mr. Trimble: The Minister says that the bodies should consider arrangements. What arrangements, and how will they be taken into consideration? I refer again to the Bar Council and the Law Society, each of which makes only one appointment. What arrangements could be made with regard to those two bodies?

Mr. Spellar: Those bodies might undertake collective consideration or communicate with each other about whether, consistent with principles of appointment on merit, they can also achieve reflectiveness in the commission. I am not saying that this would be the outcome, but I am sure that the right hon. Gentleman concedes that it would be undesirable if the commission was completely unreflective of the community in Northern Ireland.

Mr. Trimble: I thank the Minister for giving way again, because I want to probe his thinking further. He says that the bodies might communicate with each other. How will they do that and what will they say? Will there be an arrangement such as that which pertains between the Law Society and the Bar, where they get together and the Law Society says, ''We'll appoint a woman solicitor if you appoint a male barrister.''? Is that the arrangement that the Minister is thinking of? If there was an arrangement of that nature, each body would individually be guilty of discrimination, because it would be making an appointment on the ground of gender. Those bodies

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will make only the one appointment. I ask the Minister again: what arrangements will there be and how will they be legal?

Mr. Spellar: Again, from the point of view of the commission, and lawfully trying to achieve a reflective commission, I keep coming back to whether the right hon. Gentleman thinks it would be desirable to have a completely unreflective commission. In the same way, we may consider the parallel between the laws of chance and the laws of probability.

The right hon. Gentleman takes the example of the involvement of women in the law. I fully understand that, historically, the legal profession has contained a high percentage of males and that a limited number of women moved up through it. As the number of women engaging in the legal profession has increased, we would think it slightly odd if, for example—I am in no way suggesting that this is the exact situation—that was not reflected in appointments as people move up through the system.

Mr. Carmichael: Surely, by definition, it is accepted that the non-lay appointments are not going to be representative. That is the reason for having the lay representatives on the commission.

Mr. Spellar: There is also the matter of considering the commission as a whole to try to make it reflective. Reflective is the important term. We must recognise that we may be talking about a process over time, and that these are the aspirations and objectives that we are working towards. The principles are consistent. The hon. Gentleman, on reflection, might even consider that, from a Liberal Democrat point of view, the objective is desirable.

Mr. Trimble: I do not want to labour the point as it has already been made, but I have just one more request to make of the Minister. Will he please think about this matter and consult with whomever he considers appropriate? 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? I refer to the example given earlier. Some arrangements that might naturally come to mind would be illegal and would involve discrimination contrary to legislation. I do not expect the Minister to answer that point in detail now, but perhaps he will come back on Report and say what arrangements he has in mind.

Mr. Spellar: I certainly give the right hon. Gentleman that undertaking. The requirement is for the commission to be reflective

    ''so far as is practicable''.

We do not believe that that would lead to discriminating unlawfully. However, I assure him that I will reflect further on the points that he has raised.

I will return to amendment No. 3 shortly. Amendment No. 30 would require that the First Minister and Deputy First Minister must, as far as possible, ensure that lay members of the commission

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

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The amendment would also remove the requirement that the composition of the commission, as far as reasonably practicable, be

    ''reflective of the community in Northern Ireland.''

Amendment No. 49 would ensure that lay members are

    ''selected on the basis of the additional value they would bring to the Commission's deliberation''.

It describes qualities such as

    ''experience of selection processes, the court users' perspective''

and the ability to

    ''assess the personal qualities of candidates.''

We might have to define ''the court users' perspective'' carefully in that context.

I appreciate hon. Members' concern that the lay members should bring valuable experience to the commission. We obviously want individuals who can make real and meaningful contributions. The qualities set out in both amendments are laudable. Indeed, we hope that lay members could bring such qualities to the commission, but we do not think it necessary to specify in primary legislation what those desirable qualities would be.

I am sure that hon. Members agree that the matter would be best dealt with administratively. Accordingly, I urge that those amendments should not be pressed.

11.15 am

Amendment No. 3 would make specific the matters to be regarded when seeking to secure a commission that is reflective of the community. It is helpful to think about what is meant by the term ''reflective'', and no doubt many of the matters listed in the amendment are relevant to that issue. Having said that, we have always made it clear that political opinion is not a factor in the judicial appointments process, and we do not propose to consider it in relation to appointments to the commission.

We hope that members of the commission will be reflective of the community in terms of their community background, gender, age, ethnicity, disability and the part of Northern Ireland to which they consider themselves most closely associated. We do not think that there would be an advantage in making the Bill prescriptive.

The Government are fully committed to a reflective commission, and it is right and proper that those undertaking such important work should be identifiable with the community they serve. We do not need to go further than the current provisions. I am confident that when the commission is established it will be reflective of the community as far as possible, and will command the confidence of the community

Mr. Grieve: I hope that the Minister will forgive me, but those two sentences were the most wonderful official gobbledegook. It left me completely unable to fathom how a very distinguished Jewish lawyer—who is a member of a very small minority—could be reflective of the community. He cannot, because he may be in such a tiny minority within Northern Ireland that he is reflective of no wider community at

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all, but he might be the perfect person to be a judge and serve on the commission.

Mr. Trimble: There are distinguished Jewish lawyers.

Mr. Grieve: I am well aware of it, but there is a very small Jewish community. Once the reflective basis is introduced, such people will be squeezed out, not brought in.

Mr. Spellar: I say to the hon. Gentleman that that would be the case were we saying that there should be a representative quota. That is precisely why—unlike the review—we use the term ''reflective'' rather than ''representative''.

Mr. Hunter: I asked the Minister to clarify whether there would be some formalised means of redress for an aggrieved person. Did I understand him to say that he does not intend to establish any procedures whereby someone who believes that the commission is not reflective of the community can take action?

Mr. Spellar: I shall have to come back to the hon. Gentleman on that point, because I would stress that the matter properly depends on the use of ''reflective'' rather than ''representative''. We are not talking about a quota system; we are looking at a duty for those responsible for appointments to seek to achieve a reflective body. That body would, therefore, be one that commands the widest possible confidence in the community. I am not sure that people would have redress on the matter, and I am not sure whether they could take action on judicial review. I hope that before the end of my contribution, enlightenment will come to me and I shall be able to respond to the hon. Gentleman's point.

Amendment No. 50 would preclude the commission from establishing a committee to select someone to fill a judicial vacancy. We dealt with that matter at some length. Interestingly enough, the criminal justice review report did not envisage that the commission as a whole would conduct interviews. It would clearly not be practical to have an interview panel comprising 13 people. The functions of the commission in relation to particular appointments would have to be carried out by a body other than the commission in its entirety. Paragraph 6.105 of the review says:

    ''nor do we believe it necessary that each individual panel should consist only of members of the Commission, although that may well be the case for the more senior appointments.''

The review also recommended that a selection panel should have one lay member and a member of the judiciary at the tier to which the appointment would be made.

As I said during the lengthy exchange with the right hon. Member for Upper Bann, the commission is independent and best placed to decide how it carries out its responsibilities most effectively within the parameters defined by the 2002 Act. With some appointments—for example, to specialist tribunals—the commission might want those making the selection to include someone with detailed knowledge of the tribunal. In those circumstances, it might be necessary to include on the selection panel someone other than a commission member. However, we would expect a different approach when selecting people for

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appointment to the High Court and there would be a strong case for saying that only members of the commission should be involved. The Lord Chief Justice, who will chair the commission, has agreed that a committee of the commission—the assessment panel—will be established for High Court appointments. It will be chaired by the Lord Chief Justice or, if he is unavailable, a Lord Justice of Appeal, and will comprise at least two other members of the commission, including a lay member and another judge. Only members of the commission would be on the committee to select a High Court judge.

 
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