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Standing Committee Debates
Justice (Northern Ireland) Bill [Lords]

Justice (Northern Ireland) Bill [Lords]

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Standing Committee D

Thursday 25 March 2004


[Mr. Joe Benton in the Chair]

Justice (Northern Ireland) Bill [Lords]

Clause 2

Membership of the Commission

2.30 pm

Mr. Dominic Grieve (Beaconsfield) (Con): I beg to move amendment No. 11, in

    clause 2, page 2, line 8, leave out subsection 2.

At the risk of going over ground that was touched on in the other place, we cannot allow subsection (2) to pass without probing the Government on the changes that they have introduced. The Minister will be aware that the Justice (Northern Ireland) Act 2002 provided that a judicial member of the Judicial Appointments Commission would hold office, in effect, for such a period as was linked to his tenure as a judge, unless, of course, he opted to come off the commission. The change provides for a ceiling limit of 10 years' service and for such a member not holding office for more than five years at a time.

I am not unsympathetic to the Minister's aim. I can see the merit of a throughput of people providing expertise to the commission, but the point was rightly made in the other place that the number of judges available to do the work is pretty limited. There must be concern about whether there will be the required number of judges willing to do the work, because it is probably quite onerous, and whether we will end up with a shortage of judges. At the same time, judges who have been doing excellent work will not be able to continue as a result of the provision. I should be grateful to hear the Minister's explanations and views on the subject.

The Minister of State, Northern Ireland Office (Mr. John Spellar): The 2002 Act already places time limits on the other members of the commission—the lay members and the legal professionals—and it seems sensible to treat all members consistently. Under the proposed time limits, judicial members would be able to serve for up to an aggregate of 10 years, and a judicial member could be appointed afresh on being appointed to a different judicial tier. I trust that that will help to assuage the concern that the hon. Gentleman expressed that the time limits could unduly restrict membership of the commission. We do not regard the provision as unduly restrictive. Indeed, we are confident that we will have no difficulty in finding judges of the highest calibre to serve on the commission. I hope that I have reassured him on that.

Mr. Alistair Carmichael (Orkney and Shetland) (LD): I should like to push the Minister a little further on the issue. I broadly agree with the terms of the amendment tabled by the hon. Member for Beaconsfield (Mr. Grieve). I, too, am interested to know the genesis of the change. It seems not to have

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been in the review or even in the joint declaration. Did the Government agree to it as part of a discussion with one of the other parties? That is something on which we have made our views known in the past. I am sure that there must be a good reason for the proposal, but we established in this morning's debate that there was no particular necessity for lay and non-lay members to be treated alike, so I should like to hear exactly what the Minister is getting at here. Is there a good reason for the change or, as we are talking about judges, is it just some ministerial frolic?

Mr. Spellar: That is scarcely likely. To some extent, the point was made by his hon. Friend the Member for Beaconsfield.

Mr. Carmichael: He is not my friend.

Mr. Spellar: The hon. Gentleman seemed so friendly. It just shows that, as always with the Liberal Democrats, appearances can be deceptive. The point is that 10 years is quite a significant period and, even though I accept that there is a limited pool—that point was also made in the House of Lords—we want to engender some throughput. For that reason, we have proposed the change.

Mr. Grieve: I am grateful for that explanation, but I am not completely satisfied with the answer that the Minister gave to the hon. Member for Orkney and Shetland (Mr. Carmichael) about the genesis of the change, although I can see that there is a degree of logic behind bringing the lay and judicial members into line. My experience in many areas of life is that it tends not to be a good thing for people to stay on committees for too long; it is always desirable for new people to join.

The Minister has not answered adequately, which will leave the lurking suspicion that there may be an agenda along the lines of that to which the hon. Member for Orkney and Shetland—whom I would call a friend in any place outside this context—referred. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Mr. Hunter: My position on the stand part debate on clause 2 is very much the same as the position that I adopted on clause 1. Despite all the arguments that we have heard from the Government, I still believe that the concept of ''reflective of the community'' is fundamentally flawed and therefore wholly undesirable. I maintain that appointment to places on the commission should be based exclusively on the quality and qualifications of individuals. Unless clause 2 is amended along the lines proposed by the right hon. Member for Upper Bann (Mr. Trimble), I will find it unacceptable, and although I do not propose to force a Division on the clause, I wish to put on record my opposition to it.

Question put and agreed to.

Clause 2 ordered to stand part of the Bill.

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Clause 3

Duty of Commission to secure judiciary reflective of the community

Mr. Hunter: I beg to move amendment No. 24, in

    clause 3, page 2, leave out lines 24 to 38.

The Chairman: With this it will be convenient to discuss the following amendments: No. 12, in

    clause 3, page 2, line 25, after 'of', insert 'continuous'.

No. 31, in

    clause 3, page 2, leave out lines 26 to 38.

No. 56, in

    clause 3, page 2, line 26, after 'of', insert 'continuous'.

No. 13, in

    clause 3, page 2, line 36, at end insert—

    '(11) The Commission shall submit a report annually to the Lord Chancellor on the progress of the programme of action and the Lord Chancellor shall lay this report before Parliament.'.

Mr. Hunter: The amendment is the first of three that I have tabled at the request and on behalf of the Democratic Unionist party. I hope that the Minister will recognise that in his reply. My place on the Committee is due to my having been nominated by the Democratic Unionist party.

The purpose of amendment No. 24 is straightforward and transparent. It seeks to address an important part of our grave concern about the Bill, as expressed on Second Reading. That concern was shared by all Northern Ireland Unionist Members and by many Conservative Members.

If the amendment were accepted, the Bill would require that:

    ''The selection of a person to be appointed, or recommended for appointment, to a listed judicial office . . . must be made solely on the basis of merit.''

No other consideration of any nature whatever would be taken into account—only a candidate's merit.

Sadly, nothing that the Government said on Second Reading or that the Minister said this morning significantly calms our fears on this matter. I agree with the right hon. Member for Upper Bann, who argued in earlier proceedings that the concept of ''reflective of the community'' was fundamentally flawed and impractical, and that only the qualities and qualifications of individuals should be considered when judicial appointments were made. There is a strong argument to be made that subsections (9) and (10) not only undermine and weaken the requirement of subsection (8)—that appointment should be made on the basis of merit alone—but that when put into practice, appointments ''reflective of the community'' would ultimately be incompatible with appointment on the basis of merit alone.

I agree with the Government that confidence in the justice system is essential, but I do not accept that there is any shortfall of confidence in Northern Ireland's judiciary that is worthy of mention. In short, there is no need for the provisions contained in lines 24 to 38; those provisions are more likely to undermine confidence in the judiciary and the judicial system than to promote it. Where is the evidence to

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support the allegation that Northern Ireland's judicial system, and the judges that are an integral part of it, are unfair or biased?

Although I had differences of opinion with Lord Mayhew when he was Attorney-General and Secretary of State for Northern Ireland, I accept the view that he put forward when the Bill was debated in another place. He stated that he did not recall

    ''any serious lack of public confidence in the judiciary ever manifesting itself.''

He commented that

    ''the judiciary of Northern Ireland, appointed as it has been by the Lord Chancellor, has earned a superb reputation for its fairness and impartiality, to say nothing of its courage and dedication to the rule of law.''

He continued that there was

    ''no significant or telling imbalance'',


    ''members were appointed . . . solely on merit'',

and that

    ''marginally more appointments were made from those with Catholic backgrounds''.

He argued that

    ''public confidence in the judiciary has been deservedly very high.''—[Official Report, House of Lords, 16 December 2003; Vol. 655, c. 1107–08.]

The Committee is aware that the concept of ''reflective of the community'' has replaced ''representative of the community'', and that is without doubt a step in the right direction. Nevertheless, the concept of ''reflective of the community'' has the potential of moving us towards the mistaken and fallacious 50:50 equality of outcome approach, especially when one bears in mind the genesis of the Bill: the Hillsborough declaration in March 2003. It is hard to avoid the conclusion that the Government are once again trying to appease the provisional republican movement and its fellow travellers. Some time ago, the Government fell into the trap that once one starts paying the blackmailer, he comes back for more. This aspect of the Bill is another classic illustration of that.

The equality of outcome approach was not sanctioned by the Belfast agreement, so that does not provide justification for it. It is not what the Equality Commission is charged to achieve, nor is it what is meant by human rights instruments when the commission talks of equality. In those cases, the reference to equality means equality of opportunity and the requirement that individuals are treated fairly. That is already the case with judicial appointments and no additional legislation is required.

In the Minister's winding-up speech on Second Reading, one statement particularly caught my attention. He asserted:

    ''The criminal justice review, which the Bill builds on, is about modernising the system of appointments in line with the changing needs of society.''—[Official Report, 10 March 2004; Vol. 418, c. 1616.]

I suggest that those words encapsulate a fundamental difference of opinion between the signatories of the amendment and the Government. The Minister argues

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that the judicial system must be modernised to keep it in line with the ''changing needs of society'', but what does he mean by that? What objective criteria or mechanisms are there for determining the changing needs of society? How are the alleged changes to be qualified and quantified, and by whom? Any attempt to do that is an exercise in subjective judgment. Moreover, even if we could agree about the changing needs of society, they are by definition transient and an unreliable basis for making judicial appointments.

2.45 pm

I take the view that, in reality, the qualities required for appointment to judicial office are timeless; they should be unaffected by transient social changes.

The merit only grounds for judicial appointment should not be debased in pursuit of the idol of political correctness. It is deeply worrying that the Belfast agreement's institutionalised sectarianism might be extended to judicial appointments, albeit through the back door.


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